HomeMy WebLinkAboutCOM 1014.001 2006-2008
Charles Flaherty
From: Charles Flaherty [oneheart@aloha.net]
Sent: Wednesday, February 20, 2008 1:31 PM
To: 'counciltestimony@co.hawaii.hi.us'
Cc: 'Ford, Brenda'; 'Hoffmann, Pete'; 'Donald Ikeda;'jjaco@co.hawaii.hi.us;'shiga@co.hawaii.hi.us';
'enaeole@co.hawaii.hi.us'; 'KAPILAGO@co.hawaii.hi.ue; 'Dominic Yagong';
'jyoshimoto@co.hawaii.hi. us'
Subject: Comment on Communication 1014
Aloha mai Chairman Pilago and members of the Planning Committee,
I provided testimony to the County Council regarding the issue of whether the Department of Hawaiian Home
Lands must comply with county zoning laws last October. I have provided you with copies of that testimony.
Since that time, I have spoken with David Kimo Frankel of the Native Hawaiian Legal Corporation.
It is his opinion that county zoning laws apply to any development that is not related to homesteading, agricultural,
farm, ranch, and aquaculture development.
Given that county zoning on the DHHL 200 acre maikai Kealakehe property is "open", it is highly probable that the
DHHL designation of that property as a commercial "project district" is illegal under state law.
If the county Planning Director believes that the Memorandum of Understanding with DHHL precludes the county
from enforcing its "open" zoning designation, it is highly probable that the Memorandum of Understanding
between the county and DHHL is illegal under state law.
Mahalo,
Charles Flaherty
Comm. No.
Ref. To:rfbie `
2/20/2008 Ref. Dote, V L13 2 2008
Charles Flaherty
From: Charles Flaherty foneheart@aloha.net]
Sent: Thursday, October 11, 2007 2:56 PM
To: 'counciltestimony@co.hawaii.hi.us'
Cc: 'Ford, Brenda'; 'Hoffmann, Pete';'Donald Ikeda';'jjaco@co.hawaii.hi.us';'shiga@co.hawaii.hi.us';
'enaeole@oo.hawaii.hi.us'; 'KAPILAGO@co.hawaii.hi.us'; 'Dominic Yagong';
'jyoshimoto@co. hawai i. h i. us'
Subject: Testimony conditionally supporting Bill 167
Aloha mai,
I am testifying in support of banning "superstores" in the County of Hawai'i, including Department of Hawaiian
Home Lands as amended by Council member Angel Pilago. I also support Council member Brenda Ford's
amendment as introduced on October 3, 2007 closing loopholes that would allow superstores to be built on our
island.
Native Hawaiian Legal Corporation has filed a lawsuit to challenge the state's failure to adequately fund the
Hawaiian Homes Program, as it pledged to do as a condition of statehood. Instead, the Hawaiian Homes
Commission is embarking on a program to commercially lease its trust lands to raise revenue, in contravention of
the specific constitutional provisions under Art. XII, sec. 1 requiring the Legislature to provide "sufficient sums"
to the DHHL for all of its operations:
"The legislature shall make sufficient sums available for the following purposes:
I ) development of home, agriculture, farm and ranch lots;
2) home, agriculture, aquaculture, farm and ranch loans;
3) rehabilitation projects to include, but not limited to, educational, economic, political, social and cultural
processes by which the general welfare and conditions of native Hawaiians are thereby improved;
4) the administration and operating budget of the department of Hawaiian home lands; in furtherance of (1), (2),
(3) and (4) herein, by appropriating the same in the manner provided by law."
The Lingle Administration through Micah Kane, the former Chair of the State Republican Party, is acting against
the constitution by using Hawaiian Home Lands instead of using privately-owned land for commercial
development.
With the State Historic Preservation Division in a shambles and constitutionally-protected Native Hawaiian
historic and cultural sites being wiped out on a massive scale, it is clear that the Lingle Administration is
implementing a policy of cultural genocide to destroy what few resources the Native Hawaiian people possess.
Please vote to ban all non-agricultural commercial development on Department of Hawaiian Home Lands
property. It's the constitutional thing to do!
Mahalo nui,
Charles Flaherty
2/20/2008
Charles Flaherty
From: Charles Flaherty loneheart@aloha.netj
Sent: Friday, October 12, 2007 10:42 PM
To: counciltestimony@co.hawaii.hi.us'
Cc: 'Ford, Brenda'; 'Hoffmann, Pete'; 'Donald Ikeda'; 'j aco@co.hawaii.hius; 'shiga@co.hawaii.hi.us`
'enaeole@co.hawaii.hi.us'; 'KAPILAGO@co.hawaii.hi.us'; 'Dominic Yagong';
'lyoshimoto@co. hawaii. hi. us'
Subject: Further testimony on Bill 167
Aloha mai members of the County Council,
I have read through K_epo'o v. Watson, 87 Haw. 91 ( and do not
agree with Mr. Yuen's analysis (see below) that this Supreme Court decision prevents the county from
regulating commercial and industrial leases/uses of DHHL properties. Actually, it seems that this case
supports such county regulation.
The MOU between the County and DHHL is legally non-binding. The county administration is using
administrative legal opinions, rather than actual legal precedent to argue that the County cannot regulate
commercial and industrial leases of DHHL property.
I sent testimony to you that stated "Native Hawaiian Legal Corporation has filed a lawsuit to challenge the state's
failure to adequately fund the Hawaiian Homes Program, as it pledged to do as a condition of statehood. Instead,
the Hawaiian Homes Commission is embarking on a program to commercially lease its trust lands to raise
revenue, in contravention of the specific constitutional provisions under Art. XII, sec. 1 requiring the Legislature
to provide "sufficient sums" to the DHHL for all of its operations."
While I'm not an attorney, I would still argue the following using Kepo'o v_Watson, Sections X-XII:
Historically, zoning has been connected to the common laws of nuisance and trespass so that one
property owner did not use his land to harm others. Zoning better identifies a private property owner's
right to defend against nuisance, and thereby promotes the general health, safety and welfare of the
public. Therefore, zoning is a police power.
Micah Kane, Director of DHHL, former Director of the state Republican Party, and former government liaison for
the Building Industry Association, is arguing that DHHL needs commercial leases to fund development of
residential leases/homes. This argument ignores the fact that the state constitution requires the legislature to fund
development of homes. 'T'herefore, funding by commercial/industrial leases is only incidental and not significant
to the constitutional mandate that requires funding by the legislature. Certainly, this issue will be further clarified
by the NHLC lawsuit.
In Kepo'o v. Watson, the state Supreme Court affirmed that "police power regulations apply to Hawaiian
home lands, and executive officials may enforce them, as long as these regulations do not significantly
affect the land."
Therefore, I would argue that 1) DHHL is subject to county zoning, except for DHHL residential and
agricultural leases, and 2) Council member Pilago's amendment is constitutional, especially if it were
applied to all property within the county.
Mahalo,
2/20/2008
Charles Flaherty
----Original Message-----
From: cyuen [mailto:chris_yuen@co.hawaii.hi.us]
Sent: Sunday, April 29, 2007 1:36 PM
To: 'Charles Flaherty'
Cc: Kaetsu, Dixie; Ashida, Lincoln; Self, Amy
Subject: RE: DHHL Memorandum of Understanding, 2nd request
-----Original Message-----
From: Charles Flaherty [maiito:oneheart@aloha.net]
Sent: Sunday, April 29, 2007 12:20 PM
To: 'Chris Yuen'
Cc: Kaetsu, Dixie; Pilago, K. Angel; Higa, Stacy; Naeole, Emily; Ford, Brenda; Jacobson, Bob;
Yagong, Dominic; Ikeda, Donald; Yoshimoto, J; Hoffmann, Pete
Subject: DHHL Memorandum of Understanding, 2nd request
-----Original Message-----
From: Charles Flaherty (mailto:oneheart@aloha.net]
Sent: Wednesday, April 04, 2007 1:23 PM
To: 'chris_yuen@co.hawaii.hi.us'; 'Kaetsu, Dixie'
Cc: 'KAPILAGO@co.hawaii.hi.us'; 'shiga@co.hawaii.hi.us'; 'enaeole@co.hawaii.hi.us';
'bford@co.hawaii.hi.us'; 'paco@co.hawaiLhi.us; 'dyagong@co.hawaii.hi.us'; 'Donald Ikeda';
']yoshimoto@co.hawaii.hi.us'; 'PHOFFMANN@co.hawaii.hi.us'
Subject: DHHL Memorandum of Understanding
Aloha Chris,
What is the legal basis for the memorandum of understanding which exempts DHHL from the
County General Plan and other county laws?
Mahalo,
Chuck
2/20/2008
5(c); because the governor is not involved, there is no conflict
with this Act. 87 H. 91, 952 P.2d 379.
TITLE 1: DEFINITIONS
§1. That this Act may be cited as the "Hawaiian Homes
Commission Act, 1920."
§2. That when used in this Act the term "Hawaiian Organic
Act" means the Act entitled "An Act to provide a government for
the Territory of Hawaii," approved April 30, 1900, as amended.
Attorney General Opinions
This Act construed as a state constitutional provision rather
than an Act of Congress. Att. Gen. Op. 81-4.
Case Notes
The Hawaii Admission Act transferred complete responsibility
of the Hawaiian Homes Commission Act program and the homelands
to Hawaii and claims based on that Act do not "arise under"
federal laws. 568 F.2d 1216.
TITLE 3: AMENDMENTS TO HAWAIIAN
ORGANIC ACT
[See the Organic Act.]
[TITLE 1A: PURPOSE]
[§101. Purpose.] [Text of section subject to consent of
Congress.] (a) The Congress of the United States and the State
of Hawaii declare that the policy of this Act is to enable
native Hawaiians to return to their lands in order to fully
support self-sufficiency for native Hawaiians and the self-
determination of native Hawaiians in the administration of this
Act, and the preservation of the values, traditions, and culture
of native Hawaiians.
4
(b) The principal purposes of this Act include but are not
limited to:
(1) Establishing a permanent land base for the benefit and
use of native Hawaiians, upon which they may live, farm,
ranch, and otherwise engage in commercial or industrial or
any other activities as authorized in this Act;
(2) Placing native Hawaiians on the lands set aside under
this Act in a prompt and efficient manner and assuring
long-term tenancy to beneficiaries of this Act and their
successors;
(3) Preventing alienation of the fee title to the lands set
aside under this Act so that these lands will always be
held in trust for continued use by native Hawaiians in
perpetuity;
(4) Providing adequate amounts of water and supporting
infrastructure, so that homestead lands will always be
usable and accessible; and
(5) Providing financial support and technical assistance to
native Hawaiian beneficiaries of this Act so that by
pursuing strategies to enhance economic self-sufficiency
and promote community-based development, the traditions,
culture and quality of life of native Hawaiians shall be
forever self-sustaining.
(c) In recognition of the solemn trust created by this Act,
and the historical government to government relationship between
the United States and Kingdom of Hawaii, the United States and
the State of Hawaii hereby acknowledge the trust established
under this Act and affirm their fiduciary duty to faithfully
administer the provisions of this Act on behalf of the native
Hawaiian beneficiaries of the Act.
(d) Nothing in this Act shall be construed to:
(1) Affect the rights of the descendants of the indigenous
citizens of the Kingdom of Hawaii to seek redress of any
wrongful activities associated with the overthrow of the
Kingdom of Hawaii; or
(2) Alter the obligations of the United States and the State
of Hawaii to carry out their public trust responsibilities
under section 5 of the Admission Act to native Hawaiians
and other descendants of the indigenous citizens of the
Kingdom of Hawaii. [L 1990, c 349, §11
5
TABLE OF CONTENTS
Page
1. DEFINITIONS ...................................................................................................................2
1.1 Amended Decision 2
1.2 Bench Area 2
1.3 Burial Treatment Plan 2
1.4 Bypass Highway 2
1.5 CC&Rs ...................................................................................................................2
1.6 County ....................................................................................................................2
1.7 County Administration 2
1.8 Cultural Preserve 2
1.9 Development Agreement 2
1.10 Dispute Party 2
1.11 DLNR .....................................................................................................................2
1.12 DOH .......................................................................................................................2
1.13 Effective Date 2
1.14 Hokuli'a Cultural Area 3
1.15 Hokuli'a Foundation 3
1.16 Hokuli'a Project 3
1.17 Hokuli'a. Project Approvals ...................................................................................3
1.18 Individual Plaintiffs 4
1.19 Kona Scenic Park 4
1.20 Litigation ................................................................................................................4
1.21 LUC 4
1.22 Members' Lodge ....................................................................................................4
1.23 Oceanside ...............................................................................................................4
1.24 Park Addition 5
1.25 Party .......................................................................................................................5
1.26 Parties .....................................................................................................................5
1.27 PKO ........................................................................................................................5
1.28 Plaintiffs .................................................................................................................5
1.29 Project Preservation Plan 5
1.30 Pu'u Ohau Cultural Area 5
1.31 Shoreline Park 5
1.32 Shoreline Public Access Plan 5
2. EFFECTIVE DATE 5
3. HOKULFA PROJECT 5
3.1 Completion of Bypass Highway 5
3.2 Construction of Temporary Connector Road 5
3.3 Elimination of Members' Lodge 6
3.4 Limitation on Density 6
3.5 Rehiring of Former Hokuli a Employees 6
1-SF17338063.2 _j_
TABLE OF CONTENTS
(continued)
Page
3.6 Application to LUC 6
3.6.1 Application Contents 6
3.6.2 Conditions Imposed by the LUC 6
3.6.3 County Support 7
3.7 Implementation of Agricultural Plan 7
3.8 Extension of Time For Performance of Oceanside's Commitments to the
County 8
4. AFFORDABLE HOUSING 8
4. 1.1 Construction of Affordable Housing Units 8
4.1.2 Construction of Additional Affordable Housing Units 8
5. KONA SCENIC PARK 8
5.1 Land Dedication 8
5.2 Additional Facilities 8
6. CULTURAL RESOURCES ..............................................................................................9
6.1 Park and Cultural Sites Entity 9
6.2 Purpose ...................................................................................................................9
6.3 Delegation ..............................................................................................................9
6.4 Membership 9
6.5 Organizational Documents 9
6.6 Advisory Board 10
6.6.1 Information Provided to the Advisory Board 10
6.6.2 Consultation .............................................................................................10
6.7 Funding 10
6.7.1 Sales by Oceanside or Front Nine of Hokuli'a Lots 11
6.7.2 Resales of Hokuli'a Lots 11
6.8 The Kuleana Foundation 11
7. AMENDED DECISION 11
7.1 Entry of Amended Decision 11
8. HOKULI'A FOUNDATION 11
8.1 Formation of Foundation 11
82 Board of Directors. - 12
8.3 Organizational Documents 12
8.4 Funding 12
8.4.1 Sales by Oceanside or Front Nine LLC of Hokuli'a Lots 12
I -SF/73380612 -ii-
TABLE OF CONTENTS
(continued)
Page
8.4.2 Resales of Hokuli'a Lots 12
8.4.3 Assignment of Reimbursements Pursuant to Development
Agreement 12
8.5 Use of Hokuli'a Foundation Funds 12
8.5.1 Affordable Housing 12
8.52 Scholarships .............................................................................................12
8.5.3 Drug Education and Treatment 13
8.5.4 Public School Teacher Salaries 13
8.5.5 Kona Community Hospital 13
8.6 Solicitation of Additional Donations 13
9. PU'U OHAU 13
9.1 Abandonment of Development 13
9.2 Additional Acreage 13
9.3 Conservation Easement on Bench Area and Pu'u Ohau Cultural Area 13
9.4 Oceanside Will not be Required to Modify the Golf Course 13
9.5 Oceanside Commits to Build the Pu'u Wall, Unless Agreement is Reached
to do Otherwise 14
9.6 Use of Conservation Areas 14
9.7 Maintenance of Vegetation Affecting Burial Site of Kamaeo'kalani 14
9.8 Removal of Non-Indigenous Plants 14
10. STEPPING STONE TRAIL 14
10.1 Conveyance of Stepping Stone Trail 14
10.2 Designation by DLNR 14
10.3 Restoration of Stepping Stone Trail Segment 14
10.4 Stepping Stone Trail Buffer 15
10.5 Interpretive Sites 15
10.6 Maintenance of the Stepping Stone Trail and Stepping Stone Trail Area........... 15
10.7 Warning Signs 15
10.8 Trail Crossings 15
10.8.1 Reasonable Crossings 15
10.8.2 Crossing Applications 16
10.8.3 Review and Comment on Oceanside Applications 16
10.8.4 Challenges 16
10.9 Stepping Stone Trail Appeal 16
10.10 Old Cart Road 16
11. ]NATIVE HAWAIIAN BURIAL SITES 16
11.1 Peer Review of Unfinished Block Reports and Lava Tube Surveys 16
11.2 Treatment of Burial Sites Discovered in the Future 16
1 -SFn339063 2 -iii-
TABLE OF CONTENTS
(continued)
Page
11.2.1 Unfinished Block Reports and Lava Tube Surveys 16
11.2.2 Others Burial Sites 17
11.3 Extension of Time for DLNR Determinations 17
11.4 DLNR Staff Positions 17
11.4.1 Funding 17
11.5 Pending Applications With Respect to Particular Sites 17
11.5.1 Site No. 21833 17
11.5.2 Site No. 16478 17
12. BURIAL LAVA TUBES 17
12.1 Burial Lava Tubes Correctly Mapped 17
12.2 Variances With Respect to Burial Lava Tubes First Discovered After
Early 2000 or Incorrectly Mapped as of Early 2000 18
13. DESCENDANT ACCESS PLAN 18
14. AGRICULTURAL PRESERVES AND CULTURAL PRACTICE AND
PRESERVATION SITES 19
14.1 Agricultural Preserves 19
14.2 Use of Agricultural Preserves 19
14.3 Cultural Practice and Preservation Sites 20
14.3.1 Establishment ...........................................................................................20
14.3.2 Hokuli' a Cultural Area... 20
14.3.3 Pu'u Ohau Cultural Area 20
14.4 Access 20
14.5 Provision of Water 20
14.6 Proposed Re-interment Site for 21833 20
15. ARTIFACTS AND RELICS 20
15.1 Artifact Inventory Database 20
15.2 Management of Artifacts 20
16. WATER RESOURCES 21
16.1 Stipulated Permanent Injunction 21
16.2 Modified Monitoring Program 21
16.3 Baseline Study 21
16.4 Canoe Landing 21
16.5 Administrative Penalty 21
16.6 Best Management Practices 21
I.SF/7338063.2 -iv-
TABLE OF CONTENTS
(continued)
Page
17. COUNTY CULTURAL RESOURCE PROTECTION AND PRESERVATION
POLICIES 22
17.1 Legislation to Amend County Grading and Grubbing Ordinance to
Increase Protection for Cultural Resources 22
17.2 Codification of County Practice of Cooperating with DLNR on Grading
and Grubbing Activities 22
17.3 Adoption of Related County Administrative Policies to Enhance
Knowledge of Potential Impact of Grading and Grubbing on Cultural
Resources 22
17.4 Support for State and County Legislation Strengthening and Extending
Laws Intended to Protect Cultural Resources 23
17.5 Support for Rulemaking by DLNR...................................................................... 23
18. EDUCATIONAL MATERIALS REGARDING CULTURAL RESOURCES 23
18.1 Educational Materials .............°--.............---°......°--.............................................23
19. ATTORNEYS' FEES AND COSTS 23
19.1 Payment by Oceanside of Individual Plaintiffs' Attorneys' Fees 23
19.2 Payment by Oceanside of PKO Attorneys' Fees 23
20. FUTURE PROJECT CHALLENGES 24
20.1 Restricted Activity Relating to Hokuli'a 24
20.2 Release Relating to Hokuli'a 24
20.3 Waiver of Unknown Claims 24
20.4 Release Relating to Hokuli'a 24
20.5 Waiver of Unknown Claims 25
20.6 Dismissal of Litigation 25
21. REMEDIES ......................................................................................................................25
21.1 Available Remedies in the Event of Breach of Agreement 25
21.2 Enforcement Procedure 25
21.2.1 Notice of Breach 25
21.2.2 Response to Notice of Breach 25
21.2.3 Meet and Confer Obligation 25
21.2.4 Resolution of Breaches 26
21.3 Resolution of Claims Involving Non-Dispute Parties 26
21.4 Court Approval 26
22. MISCELLANEOUS PROVISIONS 26
1-SF/7338063 2 _y_
TABLE OF CONTENTS
(continued)
Page
22.1 Good Faith Consultation 26
22.2 PKO Access to Project Site and Oceanside Management 26
22.3 No Prior Assignments ..........................................................................................27
22.4 Binding on Successors 27
22.5 Settlement of Disputed Claims 27
22.6 Entire Agreement 27
22.7 Factual Investigation ............................................................................................27
22.8 Agreement May Be Pleaded as a Defense 27
22.9 Captions 27
22.10 Exhibits ................................................................................................................27
22.11 Governing Law 28
22.12 Notices, Demands and Communications Between the Parties 28
22.13 Counterparts .........................................................................................................28
22.14 Nonwaiver 28
22.15 Authority ..............................................................................................................28
22.16 Understanding of Terms 28
22.17 Construction .........................................................................................................29
22.18 No Third Parry Beneficiaries 29
22.19 Force Majeure 29
22.20 Further Assurances 29
I-SM3390631 -vi-
EXHIBIT 'B' TO ADDENDUM TO SETTLEMENT AGREEMENT
AMENDED STIPULATION FOR PERMANENT
INJUNCTION ON WATER POLLUTION CLAIMS AND ISSUES
COME NOW Plaintiffs WALTER JOHN KELLY, CHARLES ROSS
FLAHERTY, JR., PATRICK M. CUNNINGHAM, AND MICHELE CONSTANS WILKINS,
by and through their counsel, Robert D.S. Kim, Esq., and Plaintiff PROTECT KEOPUKA
OHANA, a Hawaii non-profit corporation, by and through its counsel Alan Murakami of the
Native Hawaiian Legal Corporation, (collectively, "Plaintiffs"), Defendant 1250 OCEANSIDE
PARTNERS, by and through its Chief Executive Officer, John De Fries, Defendant
DEPARTMENT OF HEALTH, STATE OF HAWAII, and Defendant STATE OF HAWAII, by
the through their counsel, Adina Cunningham, Deputy Attorney General, and Defendant
COUNTY OF HAWAII, by and through its undersigned Deputy Corporation Counsel, Ivan M.
Torigoe, appear and hereby stipulate to a modified permanent injunction as follows:
1. A Stipulated Permanent Injunction is hereby issued against Defendant
OCEANSIDE 1250 PARTNERS, effective upon the signature and approval of the Court
hereinbelow, and the express provisions of which are as follows:
A. Defendant 1250 OCEANSIDE PARTNERS is permanently
enjoined from polluting, generating runoff, discharge and/or from causing sediment runoff into
the Class AA waters off of the Hokuli'a Property (more specifically described and identified on
the tax maps of the Third Taxation Division of the State of Hawaii as Tax Map Key Nos. (3-) 7-
9-012:004, (3) 7-9-012:011, (3) 8-1-004:003 and (3) 8-1-004:056) in violation of the water
quality standards contained in Title 11, Chapters 54 and 55, Hawaii Administrative Rules, as
amended, from time to time, Chapter 342D, Hawaii Revised Statutes, as amended, and the
Notice of General Permit Coverage No. HI RIOB008 ("NGPC") issued to 1250 Oceanside
Partners as it has been or may be modified, and as applicable to construction activities on the
Hokuli'a Property; and
B. In the event that any party to this Stipulation determines that there
may have been a violation of this Stipulated Permanent Injunction, the party shall immediately
notify the Court and the other parties of their determination and the reasons therefore and the
4838-15904768.1.051730-00022
Court may immediately set an Order To Show Cause hearing as to whether Defendant 1250
OCEANSIDE PARTNERS has violated this Stipulated Permanent Injunction and if so, the
sanctions or other relief to be ordered by the Court.
C. The Chief Executive Officer of 1250 OCEANSIDE PARTNERS
(or if in the future there is no individual designated as such, the employee or officer of 1250
OCEANSIDE PARTNERS responsible for the day-to-day operations of 1250 OCEANSIDE
PARTNERS) shall be subject to the in personam jurisdiction of the Court with respect to the
enforcement of this Stipulated Permanent Injunction. The person identified above shall sign the
Stipulated Permanent Injunction and should that person be replaced, his successor(s) shall
execute a written agreement to be bound by the terms of this Stipulated Permanent Injunction,
which agreement shall be filed with the Court and served on the parties to this Stipulation; and,
D. Except as may be provided in any further order of the Court, the
parties specifically stipulate that this Stipulated Permanent Injunction shall continue in effect and
shall be binding upon 1250 OCEANSIDE PARTNERS and its successor(s) in interest as
developer of Hokuli'a, until completion of its construction of all of the phases of the Hokuli'a
Property. 1250 OCEANSIDE PARTNERS shall notify the Court and all parties to this
Stipulation of the identity of any such successor in interest; and,
E. This Stipulated Permanent Injunction is not meant to constitute an
encumbrance and/or cloud on the title of the Hokuli'a Property; and,
F. This Stipulated Permanent Injunction as provided herein, does not
in any way preclude and/or affect the right(s), power(s) and/or remedies of the State of Hawaii,
County of Hawaii and their departments and/or agencies to take any and all action and/or seek
any and all relief for any past, present and/or future violations of any water pollution or erosion
or sediment control laws; and,
G. G. This Stipulated Permanent Injunction shall constitute a
settlement of Plaintiffs' claims for injunction and/or revocation of permits in this action against
Defendant 1250 OCEANSIDE PARTNERS with respect to water quality, except for Plaintiffs'
claims for any attorneys fees from and after the effective date of this Stipulated Permanent
Injunction. This Stipulated Permanent Injunction shall not constitute a waiver of any other
4838-15904768.1.051730.0 W 22
claims, rights or remedies of Defendant DEPARTMENT OF HEALTH and/or Defendant
COUNTY OF HAWAII and/or Defendant STATE OF HAWAII, with respect to Defendant 1250
OCEANSIDE PARTNERS; and
H. This Stipulated Permanent Injunction shall be effective upon the
signature below of all Parties by their representatives as described above and upon the signature
and approval of the Court. This Stipulation may be signed in counterparts and submitted by
facsimile. Duplicate unsigned pages may be discarded to produce a single document.
1. Judge Ronald Ibarra shall determine all issues relating to whether
claims, or causes of action, have been settled by this Stipulated Permanent Injunction, and such
decision will be fmal and not subject to appeal. The parties hereby waive their rights to appeal
Judge Ibarra's decision on this matter.
1. This Stipulation and any Order entered pursuant hereto shall
replace and supersede that certain stipulation dated December 20, 2006 (other than paragraph 1
thereof) and the Order entered pursuant thereto (except insofar as such Order implemented
paragraph 1 of such stipulation).
DATED: Kealakekua, Hawaii, February 2006.
4636-1590-17%1.051730-00022
MICHELE CONSTANS WILKINS
Address:
32
1-SF/7338063.1
93 Conservation Easement on Bench Area and Pu'u Ohau Cultural Area.
Within one year after the Effective Date, Oceanside shall record a conservation easement over
the Bench Area and the Pu'u Ohau Cultural Area, allowing improvements to be installed in the
affected areas only as may he agreed by Oceanside and PKO.
9.4 Oceanside Will not be Required to Modify the Golf Course. The Parties
agree that the golf course, including particularly the second hole and the related cart paths and
sand traps, may remain intact, as it exists as of the Effective Date of this Agreement.
9.5 Oceanside Commits to Build the Pu'u Wall. Unless Agreement is Reached
to do Otherwise. Oceanside agrees with PKO that Oceanside will erect a six-foot high wall on a
new alignment, shown on Exhibit 5 attached hereto, which will include approximately 22.8 more
acres in the area enclosed by the wall as compared to the wall location previously approved by
DLNR. Oceanside and PKO also agree, however, that before such wall is constructed,
Oceanside and PKO shall work constructively together to seek the consents and approvals
required, as a matter of cultural protocol and legal requirement, in order to substitute a hedge,
consisting of native vegetation, for the wall, in order to void the extensive disturbance of the
natural terrain that would be required in order to establish solid footings for a wall. If the
necessary consents and approvals are obtained, Oceanside shall install the hedge, in consultation
with descendants, including members of PKO.
9.6 Use of Conservation Areas. Activities within the Bench Area, the Pu'u
Ohau Cultural Area and Hokuli'a Project areas in the Conservation District shall be consistent
with all applicable laws, including but not limited to, the requirements of Hawaii Revised Statute
Chapter 183C.
9.7 Maintenance of Vegetation Affecting Burial Site of Kamaeo'kalani.
Within one hundred eighty days after the Effective Date, Oceanside shall apply to DLNR for any
amendment to the Conservation District Use Agreement for the Shoreline Park which may be
needed to permit the owner of such lands and such owner's designees to trim or remove from
time to time any vegetation overhanging, or preventing appropriate access to, Kamaeo'kalani's
burial site. Oceanside shall develop, in consultation with Hokuli'a descendants, a culturally
appropriate protocol for trimming or removing from time to time vegetation overhanging, or
preventing appropriate access to, such burial site.
9.8 Removal of Non-Indigenous Plants. Within one hundred eighty days after
the Effective Date, Oceanside shall begin to consult with certified Hokuli'a descendants about
removing the non-indigenous plants located on Pu'u Ohau and replacing them with native plants.
In the event there is a consensus among the descendants in favor of such a plan, and any required
permits and approvals can be obtained, Oceanside shall implement the plan.
10. STEPPING STONE TRAIL
10.1 Conveyance of Stepping Stone Trail. Within one year after the Effective
Date,Oceanside shall convey to the State title to the trail that is the subject of a pending appeal
(the "Stepping Stone Trail') based on the alignment previously submitted to the Court by DLNR.
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The area to be conveyed to the State is depicted on Exhibit 6 attached hereto (the "Stepping
Stone Trail Area").
10.2 Designation by DLNR. DLNR shall designate the Stepping Stone Trail
Area as a preservation site on terms permitting only pedestrian use of the Stepping Stone Trail
Area, except for any crossings of the types contemplated by Section 10.8 below.
103 Restoration of Stepping Stone Trail Segment. Within one year after the
Effective Date, Oceanside shall apply to DLNR for authority to place new rounded stones,
shaped to resemble the remnant stones located elsewhere in the Stepping Stone Trail Area, in the
areas depicted on Exhibit 7, in order to create a continuous trail segment, varying in width from
three to five feet, through the area depicted on Exhibit 7 which runs generally from a tee box on
the second hole of the Hokuli'a golf course to the southern end of the Hokuli'a site. As part of
its application, Oceanside shall submit to DLNR a set of proposed plans for such work, a copy of
which proposed plans Oceanside also shall provide to PKO. Before DLNR takes any action with
respect to such plans, PKO shall be allowed a period of at least thirty days to comment upon
such plans. Upon completion of the restoration work, Oceanside shall cooperate with PKO to
organize and host a community-oriented event to celebrate the trail restoration.
10.4 Steyoing Stone Trail Buffer. Oceanside shall establish as a buffer zone an
area five feet in width on each side of the Stepping Stone Trail Area centerline. Except as
provided in this Section 10.4, no improvements shall be placed within the buffer zone, other
than: (a) the Stepping Stone Trail segments to be created by Oceanside pursuant to Section 10.3;
(b) any Stepping Stone Trail crossings approved by DLNR; and (c) landscaping which does not
interfere with use of the Stepping Stone Trail. In the event that any existing tee boxes or other
golf course improvements are located within the buffer zone, those improvements shall be
allowed to remain to stay in place.
10.5 Interpretive Sites. Oceanside shall establish, and shall maintain in
perpetuity, two interpretive areas alongside existing remnant trail segments located in the
southern third of the Stepping Stone Trail Area. These interpretive areas shall be available for
public access front the Shoreline Park. The proposed locations of these interpretive areas are
depicted on Exhibit 7 attached hereto. Oceanside shall prepare a set of proposed plans for the
interpretive areas. Before Oceanside begins construction of the interpretive sites, Oceanside
shall provide a set of such plans to PKO, which shall have a thirty-day period in which to
comment on such plans.
10.6 Maintenance of the Stepping, Stone Trail and Stepping Stone Trail Area.
As contemplated by Section 6.2, the Park and Cultural Sites Entity shall seek to enter into an
agreement with DLNR, pursuant to which the Park and Cultural Sites Entity would be
responsible for the maintenance and preservation of the Stepping Stone Trail and of the Stepping
Stone Trail Area under the supervision of DNLR.
10.7 Warming Signs. Oceanside shall install signs on the Hokuli'a golf course
advising golfers that others may be present in the area in connection with the Stepping Stone
Trail, that their presence is to be respected and that care should be taken not to put such people at
risk by virtue of golf play. Oceanside shall also post signs along the Stepping Stone Trail Area,
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and in the adjoining interpretative areas, advising persons in those areas that golf is being played
in the vicinity and that they should be aware of the associated risks.
10.8 Trail Crossings.
10.8.1 Reasonable Crossings. Plaintiffs agree that Oceanside shall be
permitted easements for at-grade ingress and egress over, and easements for underground
utilities beneath, specified portions of the Stepping Stone Trail Area and specified portions of
any other roads or trails at Hokuli'a, on terms consistent with standard practices evidenced by
similar crossings at other locations along the west coast of the Island of Hawaii.
10.8.2 Crossing Applications. DLNR shall process expeditiously, and
in accordance with applicable law, Oceanside's application for access and utility easements in
the locations specified in Exhibit 8 attached hereto and at such other locations as may reasonably
be required in the future.
10.8.3 Review and Comment on Oceanside Applications. Oceanside
shall provide PKO with all current and future applications for easements pertaining to the
Stepping Stone Trail Area and shall allow PKO a thirty day period to comment on such
applications. To the extent feasible and reasonable, Oceanside shall modify Oceanside's
applications to incorporate any comments and recommendations submitted by PKO. PKO may
submit its comments and recommendations to DLNR.
10.8.4 Challenges. Plaintiffs shall not initiate, request, file, fund,
support or participate in any challenge (including but not limited to judicial and administrative
challenges) to Oceanside's applications for access and utility easements pursuant hereto or
DLNR's determinations with respect to such applications.
10.9 Stepping Stone Trail Appeal. Within ninety days after the Effective Date,
Oceanside shall dismiss with prejudice its appeal of the Court's Stepping Stone Trail decision.
10.10 Old Cart Road. Oceanside and DLNR agree that the State owns the Old
Cart Road and that the Old Cart Road alignment at Hokuli'a runs from the southern boundary of
the Hokuli'a Project site to Pu'u Ohau along the alignment identified as Site No. 17189, as
depicted on Exhibit 6 attached hereto. As contemplated by Section 6.2, the Park and Cultural
Sites Entity shall seek to enter into an agreement with DLNR pursuant to which the Park and
Cultural Sites Entity would be responsible for maintenance and preservation of the Old Cart
Road within Hokuli'a as a public pedestrian access trail, under supervision by DLNR.
Oceanside shall grant an easement to DLNR for a pedestrian connector between the Old Cart
Road and the Old Government Road in the vicinity of Pu'u Ohau/Road J-3.
11. NATIVE HAWAIIAN BURIAL SITES
11.1 Unfinished Block Reports and Lava Tube Surveys. Oceanside shall
consult with the Advisory Board of the Park and Cultural Sites Entity on the selection of one or
more archaeologists and/or cultural specialists to review any unfinished block reports and lava
tube resurveys. After this consultation, Oceanside shall retain an archaeologist and/or cultural
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specialist to review and comment upon the unfinished block reports and lava tube resurveys.
Before such reports are submitted to DLNR for review, Oceanside shall cause the individuals
preparing the block reports or lava tube resurveys to address any concerns or criticisms made in
such reviews. In addition, Oceanside shall cause any unfinished block reports and lava tube
resurveys to be completed by an individual or firm with cultural expertise or with the assistance
of a person with cultural expertise.
11.2 Treatment of Burial Sites Discovered in the Future.
11.2.1 Unfinished Block Reports and Lava Tube Surveys. All burial
sites identified in the block reports and lava tube resurveys described in Section 11.1 shall be
treated as previously identified.
11.2.2 Others Burial Sites. With the exception of those burials
identified in the block reports and lava tube resurveys described in Section 11. 1, all burial sites
identified after the Effective Date on the Hokuli'a site, and all burial sites located in the existing
alignment for the Bypass Highway, shall constitute inadvertent discoveries within the meaning
of HRS § 6E-43.6 and Haw. Admin. R. § 13-300-2 and shall be treated in accordance with HRS
§ 6E43.6 and Haw. Admin. R. § 13-300-2.
113 Extension of Time for DLNR Determinations. In the case of any
inadvertent discovery of a burial on any portion of the Hokuli'a site owned by Oceanside, or in
the current alignment for the Bypass Highway, Oceanside shall automatically grant DLNR a 60
day extension of time in which to gather sufficient information, including oral tradition, to
document the nature of the burial context and to determine appropriate treatment of the burial
remains.
11.4 DLNR Staff Positions.
11.4.1 Funding. Oceanside shall continue to fund two full-time
DLNR staff positions: one burial staff position and one position for reviewing archeological
reports and perfomring various compliance oversight tasks. The persons assigned by DLNR to
these positions shall focus primarily on the Hokuli'a Project, but may work on other matters and
projects as time and circumstances permit. Funds for each position shall be paid on a quarterly
basis. Funding of the burial staff position shall terminate upon Oceanside's completion of the
Bypass Highway and construction of substantially all Hokuli a infrastructure. Funding of the
archeological staff position shall terminate on December 31, 2008.
11.5 Pending Applications With Respect to Particular Sites.
11.5.1 Site No. 21833. Site No. 21833 shall be treated as an
inadvertent burial site. DLNR has the authority to approve or disapprove Oceanside's pending
application to relocate such burial to an area immediately makai of the existing Bypass Highway
alignment. In the event that DLNR approves Oceanside's application, Plaintiffs shall not contest
such decision.
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11.5.2 Site No. 16478. The Parties agree that DLNR has the
jurisdiction and authority to modify the buffer for and permit Oceanside to traverse Site No.
16478 for in&astructure purposes, in accordance with the written request previously filed by
Oceanside. The Individual Plaintiffs and PKO agree not to contest any decision that DLNR
might make in response to Oceanside's written request.
12. BURIAL LAVA TUBES
12.1 Burial Lava Tubes Correctly Manned. Oceanside shall not submit any
additional applications to DLNR for variances that would allow Oceanside to cross or breach any
portion of any burial lava tube known to contain burials as of March 2000, when the Burial
Treatment Plan was approved, as such lava tube was mapped at the time. Attached hereto as
Exhibit 9 is a map showing the location of the lava tubes known in March 2000 to contain
burials, and the extent of such tubes as then mapped.
12.2 Variances With Respect to Burial Lava Tubes First Discovered After
Early 2000 or Incorrectly Mapped as of Early 2000. With respect to burial lava tubes discovered
after March of 2000, and portions of burial lava tubes missed or incorrectly mapped before
March of 2000, Oceanside shall use all practical efforts to avoid applying for any further
variances from the Burial Treatment Plan. In the event that Oceanside applies for any variances
from the Burial Treatment Plan in the future, Oceanside shall provide a copy of the application to
PKO, at the same time that the application is filed with DLNR. Plaintiffs shall not initiate,
request, file, fund, support or participate in any administrative appeal, litigation or legal action
relating to any application which Oceanside has filed, or may file, seeking waiver or amendment
of the provisions of the Burial Treatment Plan relating to the protection of the entirety of
previously known lava tubes containing burial sites, provided that Oceanside's proposed
treatment of any lava tube that is subject to the application or amendment is consistent with the
statutory definition of "burial site" in HRS § 6E-2, as interpreted in the Attorney General's
opinion dated May 9, 2001 regarding the protection of lava tube burial sites.
13. DESCENDANT ACCESS PLAN
13.1 With respect to burial sites located within a subdivision and within 100
feet of a finished home, descendants shall have access on any day, from sunrise to sunset, for the
purposes of caring for and worshiping the burial remains.
13.2 With respect to burial sites located within a subdivision but not within 100
feet of a finished home, descendants shall have access at all times, for the purposes of caring for
and worshiping the burial remains.
13.3 With respect to burial sites located outside of the subdivisions,
descendants shall have access at all times, for the purposes of caring for and worshiping the
burial remains, subject to any limitations on access set forth in the Shoreline Public Access Plan
and the Project Preservation Plan.
13.4 Descendants shall have access to the Hokuli a Cultural Area and the
Agricultural Preserves from sunrise to sunset, but descendants shall not be entitled to engage in
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any agricultural activities within the Agricultural Preserves unless expressly authorized to do so
by the Park and Cultural Sites Entity.
13.5 Descendants shall have access to the Shoreline Park, the Pu'u Oahu
Cultural Area and the Bench Area on the terms stated in the Shoreline Public Access Plan and
the Project Preservation Plan.
13.6 Visits to any authorized site, including a burial site located outside the
Shoreline Park (which has capacity and use limitations, as set forth in the Shoreline Park and
Management Access Plan), involving ten or more individuals, shall require a special permit
issued by the Park and Cultural Sites Entity.
13.7 Cultural activities, including caring for and worshipping burial remains, to
be performed at night at any location within one 100 feet of a completed home, including
midnight ceremonies, and cultural activities to be conducted at any location which involve
significant noise, artificial light or other conditions which may disturb or (absent warning) alarm
others in the area, shall require a special permit, issued by the Park and Cultural Sites Entity. In
considering applications for such permits, and for permits required pursuant to Section 13.6, the
Park and Cultural Sites Entity shall seek to insure that reasonable accommodations are made
with respect to the interests of the applicants and any homeowners who might be affected by the
proposed activity, in an effort to achieve an environment of respect and understanding. Upon
request by PKO, the Park and Cultural Sites Entity shall enter into a Memorandum of
Understanding that would identify the dates, terms and/or conditions for particular events or
activities, so that those events and activities would be pre-approved.
13.8 In the event that any gate needs to be opened in order for descendants to
gain access to any area to which access is authorized, the Park and Cultural Sites Entity shall be
required to provide a Cultural Liaison, available during normal business hours generally at a
location within the Hokuli a site, to provide the descendants an access pass which will open the
pertinent gate. Descendant families who wish to plan ahead may reserve use of an access pass
for a particular use. If the access pass is not returned within a designated period, it will be
deactivated.
13.9 Upon request, the Park and Cultural Sites Entity shall be required to
provide a general access pass to any requesting descendant, in order to allow such descendant to
enter any gates at the Hokuli'a Project in accordance with the provisions of this Section 13. If
any such pass is used to gain access in violation of the rules described above, the Park and
Cultural Sites Entity may revoke the pass.
14. AGRICULTURAL PRESERVES AND CULTURAL PRACTICE AND
PRESERVATION SITES
14.1 Agricultural Preserves. Oceanside shall include in the Project
Preservation Plan at least three specified areas, to be set aside and maintained as agricultural
preserves ("Agricultural Preserves"). The three Agricultural Preserves and their minimum
acreage shall be (a) Ke'eke'e Agricultural Preserve (approximately 2.50 acres); (b) Kanaueue
Agricultural Preserve (approximately 3.50 acres); and (c) Hokukano Agricultural Preserve
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(approximately 3.50 acres). These Agricultural Preserves are generally depicted in Exhibit to
attached hereto. After consultation with DLNR, Oceanside may expand the identified preserves
and may set aside additional areas for similar purposes, provided, however, that such additional
areas shall not be subject to the provisions of this Agreement.
14.2 Use of Agricultural Preserves. The Agricultural Preserves shall provide
areas where traditional Native Hawaiian agricultural crops could be cultivated by Hokuli'a
residents and by others authorized by the Park and Cultural Sites Entity to engage in such
activities. The Ke'eke'e Agricultural Preserve shall be an active agricultural preserve, with
crops planted and cultivated. The Kanaueue Agricultural Preserve shall be a non-active preserve
designed primarily for the preservation of remnants of the Kona Field System located therein.
The Hokukano Agricultural Preserve shall be an active area, except as needed to protect and
preserve remnants of the Kona Field System located there. The Park and Cultural Sites Entity
and DLNR shall consult with PKO before determining the types of traditional agricultural
activities that will be permitted within the Agricultural Preserves.
14.3 Cultural Practice and Preservation Sites.
143.1 Establishment. Oceanside shall also establish two cultural
practice and preservation sites ("Cultural Preserves'). The Cultural Preserves shall provide areas
where lineal and cultural descendants may engage in traditional cultural practices, The Cultural
Preserves are generally depicted on Exhibit 4 attached hereto and consist of the following:
14.3.2 Hokuli'a Cultural Area. An area near site 21833 consisting of
approximately 6 acres (the "Hokuli'a Cultural Area").
143.3 Pu'u Ohau Cultural Area. The Pu'u Ohau Cultural Area,
which as noted above consists of approximately 6 acres contiguous to the current Conservation
District area.
14.4 Access. Lineal and cultural descendants shall have access to the
Agricultural Preserves and the Cultural Preserves in accordance with Section 13.
14.5 Provision of Water. Oceanside shall provide non-potable water to the
Agricultural Preserves and Cultural Preserves in which crops and/or plants may be grown.
14.6 Proposed Re-interment Site for 21833. A portion of the I Iokuli'a Cultural
Area, to be given a name in consultation with the descendants of the Hokuli'a lands, shall be
improved by Oceanside in the manner illustrated conceptually on Exhibit 1 I attached hereto. If
allowed by DLNR, the burial located at Site No. 21833 shall be reinterred in this location.
Oceanside also commits to make this area available as a re-interment site for other burials
located within the Hokuli'a site, if such relocation of such other burials to this area is approved
by the entities or agencies with authority to approve any such burial relocations.
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15. ARTIFACTS AND RELICS
15.1 Artifact Inventory Database. Oceanside shall create and maintain a
comprehensive inventory of the Native Hawaiian artifacts and relics discovered by Oceanside or
its agents on the Hokuli'a site or in connection with Hokuli'a. This inventory shall include a
description of the artifact or relic, the location where it was found (specific burial site or area on
property), its present location, the date of removal, if it has been removed, and the identity of the
person or entity believed to have removed it. Oceanside shall create and maintain a
computerized database containing the data set forth m the inventory. The Parties shall have
access to the database. To the extent feasible, the database shall be adapted to include certain
data recovery material, field notes, documented oral histories, and maps.
15.2 Management of Artifacts. The Park and Cultural Sites Entity shall take
possession of and store all such artifacts and relics now under the control of Oceanside. In
consultation with descendants, the Park and Cultural Sites Entity shall develop a protocol
providing for the care and disposition of such artifacts and relics. The protocol may include
returning artifacts and/or relics to the site where found, particularly if the artifacts or relics were
found in the vicinity of a burial or possible burial site. If requested by a majority of the
descendants, the protocol shall include transferring possession, ownership and management of
some or all such artifacts and/or relics to an entity owned by, and under the control of, the
descendants or designated by the descendants.
16. WATER RESOURCES
16.1 Stipulated Permanent Injunction. The stipulated permanent injunction
entered by the Third Circuit Court shall continue, insofar as it enjoins Oceanside from polluting
the ocean waters.
16.2 Modified Monitoring Program. The existing water monitoring program
required by the County shall be continued, on terms which require that the water monitor be
approved by the County, DOH, Plaintiffs (for 20 years after the Effective Date) and Oceanside,
and that the water monitoring be conducted quarterly, in accordance with State ocean water
monitoring protocols of general application.
163 Baseline Study. Oceanside shall retain a qualified consultant, acceptable
to PKO, the Individual Plaintiffs, and DOH, to undertake a comprehensive baseline study of the
near shore waters for the area from Hookena Beach Park to Kahalu'u Bay. To insure the
creation of an appropriate baseline study, Oceanside shall require the consultant to seek the
advice of DOH with respect to the protocols and elements of the study. Oceanside shall also
require the consultant to conduct the study within a budget, in an amount reasonably established
by Oceanside. The study shall begin within six months after the Effective Date. All data and
reports resulting from the study shall be provided promptly to all Parties.
16.4 Canoe Landing. Oceanside shall redesign the silt containment measures at
Nawaawaa Bay so that, if and to the extent possible, the canoe landing may be reopened.
Oceanside shall seek DOH and DLNR approval of said redesign and to undertake the work. If
the approval is granted, Oceanside will cooperate with PKO to organize and host a community-
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oriented event at the canoe landing to celebrate its reopening. Maintenance of the canoe landing
shall be the responsibility of the Park and Cultural Sites Entity.
16.5 Administrative Penalty. DOH shall continue to pursue the November 2000
Notice of Violation regarding violations of the Clean Water Act by Oceanside and shall assess a
fine deemed appropriate by DOH. In its proposal to DOH as to the manner in which any fine
may be used, Oceanside shall ask that seventy five percent (75%) or more of the fine be used on
special environmental projects in, or of particular relevance to, Kona.
16.6 Best Management Practices. Oceanside shall work with the Plaintiffs, the
County and DOH to prepare proposed best management practices for golf courses and landscape
maintenance.
17. COUNTY CULTURAL RESOURCE PROTECTION AND
PRESERVATION POLICIES
17.1 Legislation to Amend County Grading and Grubbing Ordinance to
Increase Protection for Cultural Resources. In an effort to provide greater protection for cultural,
historical and burial sites, the County Administration shall work with Plaintiffs to draft,
introduce and support before the County Council legislation that would amend Chapter 10 of the
Hawaii County Code, consistent with the public interest. The focus of these cooperative efforts
shall be to amend Chapter 10 in a manner that would increase the level of education and
enforcement regarding protection of cultural, historical and burial sites. Such amendments could
include:
17.1.1 The implementation of educational processes as a part of the
permitting process; and
17.1.2 Adding to Chapter 10 detailed definitions of activities falling
under the categories of grubbing, removal of surface vegetation, and grading, to provide better
notice to the pen-nit holder of permitted activities.
17.2 Codification of County Practice of Cooperating with DLNR on Grading
and Grubbing Activities. The County Administration shall codify its current practices of
cooperation with DLNR for implementing Chapter 6E-42, HRS, by adopting written internal
work rules or procedures. In connection with these codification efforts, union consultation might
be required Should any such work rules or procedures require HRS Chapter 91 rulemaking, the
County Administration shall pursue such rulemaking. At a minimum, the new work rules or
procedures shall embrace the following principles:
17.2.1 An applicant shall secure recommendations from DLNR before
the County Administration would accept a grading or grubbing permit application;
17.2.2 An application shall include, by attachment, any conditions
recommended by DLNR;
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17.2.3 The County Department of Public Works shall suspend any
grading or grubbing permit as may be requested or required by DLNR; and
17.2.4 The County shall be required to report immediately,
telephonically or by facsimile, any evidence of historical/burial sites to DLNR's State Historic
Preservation Division should such evidence become known to County personnel in the course of
granting, monitoring or closing grading/grubbing permits.
173 Adoption of Related County Administrative Policies to Enhance
Knowledge of Potential Impact of Gradin¢ and Grubbing on Cultural Resources. The County
Administration shall adopt an administrative policy requiring persons or entities seeking grading
or grubbing permits with respect to lands known to contain cultural, historical or burial sites to
review the educational materials described in Section 18 prior to the issuance of any such permit.
The County Administration shall adopt an administrative policy requiring the grantee of a
grading or grubbing permit to affirm that he/she/it has read, reviewed and understands the
applicable State and County laws and regulations regarding the protection of cultural, historical
and burial sites. Should any such administrative policies require HRS Chapter 91 rulemaking,
the County Administration shall pursue such rulemaking.
17.4 Support for State and County Legislation Strengthening and Extendin
Laws Intended to Protect Cultural Resources. The County Administration shall work with the
Plaintiffs and Oceanside to draft, introduce and support legislation in the State Legislature that
would provide additional protection for documented and undocumented cultural, historical and
burial sites together with appropriate funding to implement the new requirements. Such
legislative efforts shall include, but not be limited to, seeking additional staff and funding for the
Burial Sites Program of DLNR's State Historic Preservation Division. Nothing in this
Agreement shall require DLNR to endorse such legislation or prevent DLNR from expressing its
independent view as to any such proposed legislation. In the event that the State Legislature
does not to pass such legislation within two years of the Effective Date, the County
Administration shall work with Plaintiffs and Oceanside to draft, introduce and support before
the County Council a new ordinance which would give greater protection to cultural, historic and
burial sites, to the extent the County is authorized to adopt such an ordinance under HRS Chapter
6E. Among other things, such an ordinance might provide for the creation of a County Historic
Preservation Commission established under the Certified Local Government program of the
National Park Service and procedures for identifying and preserving cultural, historical and
burial sites.
175 Support for Rulemaking by DLNR. The County Administration shall work
with Plaintiffs and Oceanside to urge DLNR to establish appropriate standards and inclusive
procedures relating to the consideration of any requests for variances from, or amendments to,
approved burial treatment plans.
18. EDUCATIONAL MATERIALS REGARDING CULTURAL RESOURCES
18.1 Educational Materials. Oceanside shall produce, at Oceanside's expense
and in consultation with Plaintiffs, the County and DLNR, a videotape and a brochure, each of
which shall be available for viewing by developers on the Island of Hawaii, purchasers of
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undeveloped lots, and machinery operators, outlining the legal, practical and community
considerations relating to the protection of cultural and historic resources.
19. ATTORNEYS' FEES AND COSTS
19.1 Payment by Oceanside of Individual Plaintiffs' Attorneys' Fees.
Oceanside shall pay $1,002,435.01 as attorneys' fees and costs to Robert D.S. Kim.
19.2 Payment by Oceanside of PKO Attorneys' Fees. Oceanside shall pay
$2,037,732.74 as attorneys' fees and costs to Native Hawaiian Legal Corporation.
20. FUTURE PROJECT CHALLENGES
20.1 Restricted Activity Relating to Hokuli'a. The Individual Plaintiffs and
PKO, including its officers and directors, agree and covenant that they shall not themselves, nor
counsel others to, directly or indirectly, initiate, aid, request, file, fund or participate in (i) any
publicity adverse to Oceanside or the Hokuli'a Project, (ii) any administrative hearing, litigation
or other legal action adverse to Oceanside or the Hokuh'a Project and specifically directed to any
aspect of the approval, pernitting, entitlement, development, construction or operation of the
Hokuli'a Project, except as (A) may be required to enforce the rights, obligation and covenants
set forth in this Agreement or (B) to raise any concerns as to Oceanside's compliance after the
Effective Date with the law regarding the treatment of burials or (iii) any effort to bring about
any legislation, initiative, referendum or moratorium that would undermine or materially impair
or impede the approval, permitting, entitlement, development, construction or operation of the
Hokuli'a Project or of any of the Hokuli'a Project Approvals.
20.2 Release Relating to Hokuli'a. Except for the obligations set forth in this
Agreement, PKO and Individual Plaintiffs hereby unconditionally release, remise, acquit and
forever discharge Oceanside, County, DOH and DLNR and each of their respective
representatives, attorneys, employees, agents, heirs, officers, directors, successors and assigns,
members, affiliates, partners, joint venturers, subsidiaries, parents, receivers, trustees and
shareholders (collectively, "Released Parties") from claims or causes of action, including any
and all administrative or judicial hearings or appeals, or any other litigation in a court of law,
either at law or in equity, of any kind, nature and description, presently known or unknown, that
exist as of the Effective Date, relating in any way to the Hokuli'a Project or the Hokuli'a Project
Approvals.
203 Waiver of Unknown Claims. PKO and Individual Plaintiffs agree that the
release contained in the above section extends to all claims of any kind or nature with respect to
the Project, whether known or unknown, suspected or unsuspected, and in that regard PKO and
Individual Plaintiffs acknowledge that they have read, been advised by counsel concerning, and
considered and understand the full nature, extent and import of this provision. PKO and
Individual Plaintiffs, upon the advice of counsel, waive and relinquish, now and forever, any and
all rights that they now have to the fullest extent allowed by law.
20.4 Release Relating to Hokuli'a. Except for the obligations set forth in this
Agreement, Oceanside, the County, DOH and DLNR hereby unconditionally release, remise,
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acquit and forever discharge the Individual Plaintiffs and PKO, and each of their respective
representatives, attorneys, employees, agents, heirs, officers, directors, successors and assigns,
members, affiliates, partners, joint venturers, subsidiaries, parents, receivers, trustees and
shareholders (collectively, "Released Parties") from claims or causes of action, including any
and all administrative or judicial hearings or appeals, or any other litigation in a court of law,
either at law or in equity, of any kind, nature and description, presently known or unknown, that
exist as of the Effective Date, relating in any way to the Hokuli'a Project or the Hokuli'a Project
Approvals.
20.5 Waiver of Unknown Claims. Oceanside, the County, DOH and DLNR
agree that the release contained in the above section extends to all claims of any kind or nature
with respect to the Hokuli'a Project, whether known or unknown, suspected or unsuspected, and
in that regard Oceanside, the County, DOH and DLNR acknowledge that they have read, been
advised by counsel concerning, and considered and understand the full nature, extent and import
of this provision. Oceanside, the County, DOH and DLNR, upon the advice of counsel, waive
and relinquish, now and forever, any and all rights that they now have to the fullest extent
allowed by law.
20.6 Effect on Pending Appeals. Promptly upon entry of an Amended
Decision, the Parties shall file such pleadings and/or other papers as may be necessary to dismiss
all appals pending in relation to Hokuli'a, other than the appeals filed by County and DOH
relating to the existence or extent of any public trust obligations relating to coastal water quality,
whether such duties as may exist in these areas were violated in this case, and related matters
(which appals County and DOH may continue at their discretion, notwithstanding any other
provision of this Agreement). Notwithstanding any other provision of this Agreement, PKO and
the Individual Plaintiffs do not release, remise, acquit or discharge County, DOH or DLNR from
any obligation County, DOH or DLNR may have in the future to comply with the law as applied
in an Amended Decision. PKO, the Individual Plaintiffs and Oceanside agree, other than such
rights as PKO or the Individual Plaintiffs may have pursuant to Section 16.1 of this Agreement,
that the rights and obligations set forth in this Agreement replace and terminate any rights or
obligations such Parties may have in relation to one another under the Amended Decision or any
orders referred to therein.
20.7 Dismissal of Pending Trial Court Matter. Within ninety days after the
Effective Date, Plaintiffs Kelly and PKO shall dismiss with prejudice all of their claims in
Protect Keopuka Ohana, Walter John Kelly v. State of Hawaii, et al., Civil No. 03-1-0117K.
21. REMEDIES
21.1 Available Remedies in the Event of Breach of Agreement. The Parties
agree that, in the event of a default under this Agreement by any Party, the sole and exclusive
remedy available to the other Parties shall be to enforce by specific performance the obligations
hereunder of the defaulting Party. No Party shall be required or compelled as the result of any
proceeding to take any action, or refrain from taking any action, other than those actions
expressly identified in this Agreement. In connection with any demand or cause of action related
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to a matter released, this Agreement may be pleaded as a defense by the Parties and shall operate
to effect a dismissal of such demand or cause of action.
21.2 Enforcement Procedure. Any disputes between or among the County,
Plaintiffs and/or Oceanside (hereinafter referred to in the singular as a "Dispute Party" or in the
plural as "Dispute Parties") as to the enforcement or interpretation of this Agreement shall be
presented to a neutral third party selected by the Dispute Parties. The Dispute Parties shall
resolve any dispute regarding the enforcement or interpretation of this Agreement shall be
resolved pursuant to the following procedure:
21.2.1 Notice of Breach. Within ten business days of its
determination that another Dispute Party has breached the provisions of this Agreement, a
Dispute Party shall notify all other Dispute Parties and their counsel of this determination in
writing and provide a written explanation of the basis of its determination.
21.2.2 Response to Notice of Breach. Within ten business days of
their receipt of the notice described in Section 21.2.1, above, the Dispute Parties receiving said
notice shall provide a written response to the notifying Dispute Party indicating its concurrence
with, or rejection of, the determination of breach, or indicating that the alleged breach has no
bearing on that party's rights or obligations under this Agreement, as the case may be.
21.23 Meet and Confer Obligation. Should the Dispute Parties
disagree with respect to the determination of breach of this Agreement, or the remedy necessary
to cure any alleged breach, then within fifteen business days of the receipt by the Dispute Party
claiming the breach of all responses by the other Dispute Parties, or other mutually agreeable
date, the Dispute Parties who claim an interest in the subject matter shall meet and confer in
good faith in an attempt to resolve any differences.
21.2.4 Resolution of Breaches. In the event that the dispute is not
resolved within fifteen business days of the meeting described in Section 21.2.3 above, then the
Dispute Party claiming the breach shall be entitled immediately to seek relief exclusively from
an arbitrator selected by the Dispute Parties who claim an interest in the subject matter. Within
five business days after the meeting described in Section 21.2.3, each Dispute Party who claims
an interest in the matter shall be entitled to nominate three proposed arbitrators. The Dispute
Parties who claim in interest in the matter will then meet and confer to select an arbitrator. In the
event such Dispute Parties cannot agree upon an arbitrator with ten days of the meeting
described in Section 21.2.3, then such Dispute Parties shall ask the presiding judge of the Third
Circuit Court to appoint an individual to act as the arbitrator. Any action taken to resolve a
dispute between the Dispute Parties with respect to the enforcement or interpretation of this
Agreement shall be determined through binding and final arbitration (with no right of appeal).
The arbitration shall be conducted in accordance with the commercial arbitration rules of the
American Arbitration Association then in effect. All proper costs of the arbitration including,
without limitation, witness fees, attorneys' fees, and fees of the arbitrator, shall be charged to the
Dispute Parties who claim an interest in the matter in such amounts as might be determined by
the arbitrator. Any such award shall be subject to the provisions of Chapter 658A, Hawaii
Revised Statutes, as the same may be amended from time to time.
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213 Resolution of Claims Involving Non-Dispute Parties. To the extent the
resolution of any disputes as to the enforcement or interpretation of this Agreement involves
parties other than the Dispute Parties, the resolution of the dispute shall not be in accordance
with this Section 21, but shall be as permitted by law, subject to Section 20.1 above.
21.4 Court Approval. This Agreement shall be of no further force or effect in
the event that the Court declines to enter the Amended Decision.
22. MISCELLANEOUS PROVISIONS
22.1 Good Faith Consultation. In each instance in which this Agreement
provides for consultation with, or review by, another person, group or entity, all parties involved
in the process shall exercise reasonableness and good faith in considering the views of others. In
the case of any advisory board provided for herein, the organizational documents of the entity
which the advisory board is to serve shall provide that the board of directors and officers of such
entity shall exercise good faith in considering the views expressed by the advisory board and its
members.
22.2 PKO Access to Project Site and Oceanside Management. The Parties
acknowledge that PKO has had extensive involvement with the Hokuli'a lands, in particular
through Mr. James Medeiros, its current or former President. Consequently, Oceanside agrees
with PKO that Mr. Medeiros, on behalf of PKO, shall have reasonable, non-exclusive access (i)
to observe development by Oceanside at Hokuli'a, including without limitation archaeological
fieldwork and work on or in the vicinity of the Stepping Stone Trail, other cultural sites and the
Shoreline Park, (ii) to the archaeologists retained by Oceanside to do work described in the
preceding subsection or other work at Hokuli'a, and to any construction monitors hired by
Oceanside or its contractors or consultants, in order to provide them information on cultural sites
at Hokuli'a and on local burial and cultural practices, and (iii) to Oceanside management in a
consultative capacity. PKO agrees, however, that these privileges are not intended to elevate,
and will not result in elevating, PKO or Mr. Medeiros to a preferred role in comparison to others
who may have similar concerns, including without limitation other descendants of the lands
within Hokuli'a.
22.3 No Prior Assignments. The Parties represent and warrant that they have
not heretofore assigned or transferred or purported to assign or transfer, to any other person,
entity, firm or corporation whatsoever, any claim, debt, liability, demand, obligation, expense,
action or causes of action herein released.
22.4 Binding on Successors. This Agreement and its terms shall inure to the
benefit of and be binding upon each of the Parties hereto and each and all of their respective
successors, assignees, buyers, grantees, vendees, or transferees, and their past or present, direct
or indirect, affiliates, partners, joint venturers, subsidiaries, parents, representatives, receivers,
trustees, officers, directors, employees, agents, shareholders, members and elected and appointed
officials and each of them, as though they were Parties hereto, wherever located.
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22.5 Settlement of Disputed Claims The Parties hereto understand and agree
that this settlement is a compromise of disputed claims, and that no Party's actions under this
Agreement shall be construed as an admission of liability.
22.6 Entire Agreement. This writing constitutes the entire agreement among
the Parties, and no modification of this Agreement shall be valid unless executed in writing by
the Parties hereto. Further, none of the Parties to this Agreement shall be bound by any
representations, warranties, promises, statements, or information unless expressly set forth
herein.
22.7 Factual Investigation. Each Party has conducted its own factual
investigation, is not relying on any other Party, and assumes the risk that there are material
unknown facts or that facts are other than as is presumed. The Parties further acknowledge that
they are aware that they may hereafter discover material facts in addition to or different from
those which they now know or believe to be true with respect to the subject matter of this
Agreement, and further acknowledge that there may be future events, circumstances, or
occurrences materially different from those they know or believe likely to occur, but that it is
their intention to enter into and be bound by this Agreement.
22.8 Agreement May Be Pleaded as a Defense. In connection with any demand
or cause of action related to a matter released in Section 20, this Agreement may be pleaded as a
defense by the Parties hereto and shall operate to effect a dismissal of such demand or cause of
action.
22.9 Captions The captions of the various sections in this Agreement are for
convenience and organization only, and are not intended to be any part of the body of this
Agreement, nor are they intended to be referred to in construing the provisions of this
Agreement.
22.10 Exhibits. All exhibits referenced in this Agreement are made a part of and
incorporated herein.
22.11 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Hawaii.
22.12 Notices. Demands and Communications Between the Parties. Formal
written notices, demands, correspondence and communications between the Parties shall be
sufficiently given if delivered personally (including delivery by private courier), dispatched by
certified mail, postage prepaid and return receipt requested, or delivered by nationally recognized
overnight courier service, or by electronic facsimile transmission followed by delivery of a
"hard" copy to the addresses of the Parties indicated below.
Such written notices, demands, correspondence and communications may be sent
in the same manner to such persons and addresses as any Party may from time-to-time designate
in writing at least fifteen days prior to the name or address change and as provided in this
Section 22.12.
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Notices personally delivered shall be deemed to have been received upon
delivery. Notices delivered by certified mail, as provided above, shall be deemed to have been
given and received on the first to occur of: (a) actual receipt by any of the addressees designated
above as the Party to whom notices are to be sent; or (b) within five days after a certified letter
containing such notice, properly addressed, with postage prepaid, is deposited in the United
States mail. Notices delivered by nationally recognized overnight courier service (such as
Federal Express) as provided above shall be deemed to have been received twenty-four hours
after the date of deposit. Notices delivered by electronic facsimile transmission shall be deemed
received upon receipt of sender of electronic confirmation of delivery, provided that a "hard"
copy is delivered by overnight courier as provided above.
22.13 Countervarts. This Agreement may be executed in one or more
counterparts, and all the counterparts shall constitute but one and the same Agreement,
notwithstanding that all Parties are not signatories to the same or original counterpart.
22.14 Nonwaiver. Unless otherwise expressly provided in this Agreement, no
waiver by a Party of any provision hereof shall be deemed to have been made unless expressed
in writing and signed by such Party. No delay or omission in the exercise of any right or remedy
accruing to any Party upon any breach under this Agreement shall impair such right or remedy or
be construed as a waiver of any such breach theretofore or thereafter occurring. The waiver by a
Party of any breach of any term, covenant or condition herein stated shall not be deemed to be a
waiver of any other term, covenant or condition.
22.15 Authority. The persons signing below represent that they have the
authority to bind their respective Party and that all necessary board of supervisors', board of
directors', shareholders' or other approvals have been obtained.
22.16 Understanding of Terms. The Parties each hereby affirm and
acknowledge that they have read this Agreement, that they know and understand its terms, and
have signed it voluntarily and after having been advised by counsel. The Parties have had a full
and unhindered opportunity to consult with their attorneys, accountants, financial advisors and
such other consultants, as they may have desired prior to executing this Agreement.
22.17 Construction. The Parties acknowledge that each Party and its counsel
have reviewed this Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any amendment or exhibits hereto.
22.18 No Third Party Beneficiaries. The Parties agree that no third party
beneficiary to this Agreement exists and that nothing contained herein shall be construed as
giving any other person or entity third party beneficiary status.
22.19 Force Majeure. In the event that any Party shall be delayed or hindered in
or prevented from the performance of any duties, obligations or conditions provided for and
required under this Agreement by reason of strikes or other disturbances, lockouts, labor
troubles, riots, insurrection, war or civil disturbance, fire or earthquake, tidal wave, acts of God,
the elements, government legislations, regulation or controls, or economic controls, making it
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I-SF/7338(W3.1
impossible to complete any duties, obligations, or conditions provided for or required under this
Agreement, then performance of such duty, obligation, or condition shall be excused for the
period of the delay and the period for the performance of any such duty, obligation, or condition
shall be extended for a period equivalent to the period of such delay.
22.20 Further Assurances. The Parties shall promptly perform, execute and
deliver or cause to be performed, executed and delivered any and all acts, deeds and assurances,
including the delivery of any documents, as any Party may reasonably require in order to carry
out the intent and purpose of this Agreement.
IN WITNESS WHEREOF, the Parties have executed one or more copies of this
Agreement as of the Effective Date.
1250 OCEANSIDE PARTNERS
By Red Hill 1250, Inc., General Partner
By: Lyle Anderson
Title: Chairman
Address: 76-6831 Ali'i Drive
Suite K15
Kailua-Kona, HA 96740
COUNTY OF HAWAII
By:
Title:
Address:
HAWAII STATE DEPARTMENT OF LAND AND NATURAL RESOURCES
By:
Title:
Address:
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HAWAII STATE DEPARTMENT OF HEALTH
By:_
Title:
Address:
PROTECT KEOPUKA OHANA
By:
Title:
Address:
WALTER JOHN KELLY
Address:
CHARLES ROSS FLAHERTY, JR.
Address:
PATRICK M. CUNNINGHAM
Address:
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I-SF17338063. I
1.14 Hokuli a Cultural Area. The term "Hokuli'a Cultural Area" shall have the
meaning set forth in Section 14.3.2.
1.15 Hokuli a Foundation. The term "Hokuli a Foundation" shall have the
meaning set forth in Section 8.1.
1.16 Hokuli'a Project. The term "Hokuli'a Project" shall mean that master-
planned project approved in and contemplated by the Hokuli'a Project Approvals.
1.17 Hokuli'a Project Approvals. The term "Hokuli'a Project Approvals" shall
mean the project approvals that approve, permit and entitle the development, use and operation
of the Hokuli'a Project, including without limitation:
1.17.1 SMA Permit No. 345 and Use Permit No. 115 approved on
October 27, 1993, and issued on November 5, 1993, for the development of a golf course,
clubhouse, driving range, golf maintenance facility, beach club, and related improvements.
1.17.2 Ordinance No. 94-73 which became effective on June 28,
1994, and which changed the zone for approximately 637 acres of land from the Agricultural-5
acres (A-5a) and Unplanned (U) district to the Agriculture-1 acre (A- la) district.
1.17.3 SMA Permit No. 356 issued on September 28, 1995, for the
development of portions of a proposed 400-lot agricultural subdivision and related
improvements.
1.17.4 Ordinance No 96-7, which became effective on January 15,
1996, and which changed the zone for approximately 756 acres of land from the Unplanned (U)
district to the Agriculture-1 acre (A- la) district.
1.17.5 Ordinance No. 96-8 which also became effective on January
15, 1996, and which amended certain conditions contained in Ordinance 94-73.
1.17.6 Ordinance No. 97-34 which became effective on March 13,
1997, and which amended the Hawaii County General Plan Land Use Pattern Allocation Guide
Map by re-designating an approximately 25 acre parcel of land from "Orchards" to "Resort."
1.17.7 Ordinance No. 97-35 which became effective on March 13,
1997, and which amended the State Land Use Boundaries Map (H-8) for the County of Hawaii
by changing the district classification of the lodge parcel from Agriculture to Urban.
1.17.8 Ordinance No. 97-36 which became effective on March 13,
1997, and which changed the zone for the lodge parcel from Agricultural (A-la) to Resort (V-
6.0).
1.17.9 SMA Permit Nos. 401, 402, 403 and 404 and Special Permit
No. 1056 issued on May 5, 2000, for the development of the shoreline park, bypass highway,
lodge, wastewater treatment facility and related improvements.
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1.17.10 Development Agreement.
1.17.11 SUB 91-124, the subdivision approvals for Phases I and II of
Hokuli a.
1.17.12 Any future subdivision approvals for any phase of the Hokuli'a
Project.
1.17.13 Conservation District Use Application No. HA-2977, approved
by DLNR on November 17, 2000.
1.17.14 Any approval, determination, right, entitlement, permit or use
granted by any agency or department of the State of Hawaii including but not limited to DLNR,
DOH and/or LUC.
1.17.15 Any approval, determination, right, entitlement, use or permit
granted by the County or any other local, state or federal agency, whether discretionary or
ministerial, that implements or furthers the development and improvements contemplated by any
of the foregoing items listed in this Section 1.16; and
1.17.16 Any renewals, extensions, amendments or modifications to any
of the foregoing items listed or described in this Section 1.16 that implement or further the
development and improvements contemplated by the foregoing items listed or described in this
Section 1.16.
1.18 Individual Plaintiffs. The term "Individual Plaintiffs" refers to Walter
John Kelly, Charles Ross Flaherty, Patrick M. Cunningham, and Michele Constans Wilkins,
plaintiffs in the Litigation.
1.19 Kona Scenic Park. The term "Kona Scenic Park" shall mean that parcel
consisting of 5.0 acres identified as Tax Map Key (TMK) 3-8-1-25-and situated at Haleki'i and
Keekee 1 st, South Kona, Island of Hawaii, and owned by the County.
1.20 Litigation. The term "Litigation" refers to that case encaptioned Walter
John Kelly, et al. v. 1250 Oceanside Partners, a Hawaii limited partnership, et al., Civil Action
No. 00-1-0192K, filed in Hawai'i's Third Circuit Court.
1.21 LUC. The term "LUC" shall mean Land Use Commission of the State of
Hawaii.
1.22 Members' Lodge. The tern "Members' Lodge" shall mean the eighty-
unit lodge contemplated by the Development Agreement.
1.23 Oceanside. The term "Oceanside" shall mean 1250 Oceanside Partners, a
Hawaii limited partnership.
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1.24 Park Addition. The term "Park Addition" shall have the meaning set forth
in Section 5.1.
1.25 Party. The term "Party" refers individually to Oceanside, County, DLNR,
DOH, PKO and the Individual Plaintiffs as the case may be.
1.26 Parties. The term "Parties" refers collectively to Oceanside, County,
DLNR, DOH, PKO and the Individual Plaintiffs.
1.27 PKO. The term "TKO" refers to the incorporated nonprofit association
denominated Protect Keopuka Ohana, plaintiff in the Litigation.
1.28 Plaintiffs. The term "Plaintiffs" shall mean the Individual Plaintiffs and
PKO.
1.29 Project Preservation Plan. The term "Project Preservation Plan" shall
mean the plan being prepared by Oceanside to satisfy the requirements of Hawaii Administrative
Rule Section 13-277-3.
1.30 Pu'u Ohau Cultural Area. The term "Pu'u Ohau Cultural Area" shall have
the meaning set forth in Section 9.2.
131 Shoreline Park. The term "Shoreline Park" shall mean the coastline park
required by the County to be established under Conditions 8 and 10 of SMA Permit No. 345,
Condition H of Ordinance No. 96-8, and Condition K of Ordinance No. 96-7, and subject to the
terms and conditions as set forth in the Development Agreement.
1.32 Shoreline Public Access Plan. The term "Shoreline Public Access Plan"
shall mean shall mean that certain Shoreline Park Management and Public Access Plan for The
Villages at Hokukano dated November 1998.
2. EFFECTIVE DATE. This Agreement shall be effective as of the date
("Effective Date") when all of the following conditions have occurred: (a) all Parties (or
signatories for all Parties as set forth below) have signed the Agreement; and (b) the Court in the
Litigation has entered an Amended Decision.
3. HOKULI'A PROJECT
3.1 Completion of Bypass Highway. Subject to obtaining all of the necessary
right-of-way and governmental agency approvals, Oceanside shall complete the Bypass Highway
promptly, by a date to be established pursuant to Section 3.8. The County and DLNR shall
cooperate in expediting their review and determination of any permit, approval or other decision
required for completion of the Bypass Highway.
3.2 Construction of Temporary Connector Road. Subject to obtaining all of
the necessary right-of-way and governmental agency approvals needed to complete the Bypass
Highway as well as a temporary connector road between the existing Mamalahoa Highway and
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the Bypass Highway, Oceanside shall promptly construct such a temporary connector road at
approximately the location shown on Exhibit 1 attached hereto. The temporary connector road
shall be available, until the Bypass Highway is completed, for public use during peak traffic
hours.
3.3 Elimination of Members' Lodge. Oceanside shall forego development of
the Members' Lodge within Hokuli'a.
3.4 Limitation on Density. Oceanside shall not develop more than 665 homes
or home sites at Hoku li a.
3.5 Rehiring of Former Hokuli a Employees. Oceanside shall use reasonable
efforts to rehire as many of its prior employees as possible to fill positions reestablished at
Hokuli'a.
3.6 Application to LUC. Oceanside shall submit to the LUC, on or before
September 1, 2007, an application for a boundary amendment.
3.6.1 Application Contents. The application shall contain the
following elements:
3.6.1.1.1 The application shall request that the portion of the
Hokuli'a site currently in the Agricultural District, with the exception of the Bench Area and the
Pu'u Ohau Cultural Area, be moved into the Rural District.
3.6.1.1.2 The application shall request that the Bench Area
and Pu'u Ohau Cultural Area be moved into the Conservation District.
3.6.1.1.3 The application shall not request uses of, or density
at, the Hokuli'a Project, that are inconsistent with this Agreement.
3.6.2 Conditions Imposed by the LUC. The Parties acknowledge
that the LUC may impose certain conditions upon the boundary amendments that Oceanside
shall seek pursuant to the provisions of this Section 3.6.
3.6.2.1 In the event the LUC approves Oceanside's boundary
amendment application on the condition that Oceanside agrees to make the contribution to local
education needs typically required as of the date of this Agreement (approximately $4,000 per
unit), Oceanside shall accept the additional condition.
3.6.2.2 Oceanside may withdraw its boundary amendment
application if the LUC proposes any other material condition or if LUC approval would (i) result
in any other material condition under applicable law, including any density restriction (limiting
the number of market value dwelling units to less than 665, for example), condition, or exaction,
that is not authorized by or consistent with this Agreement, (ii) result in any additional financial
obligations or requirements (beyond those contemplated by this Agreement) that Oceanside
would have to undertake or satisfy in order to complete the Hokuli'a Project (other than the
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1-SF/7338063.1
Members' Lodge), or (iii) result in any other material limitation on Oceanside's flexibility in
completing the Hokuli'a Project (other than the Members' Lodge). The withdrawal of its
boundary amendment application pursuant to the preceding sentence shall not, in any form or
fashion, impair or impede Oceanside's ability to develop the Hokuli'a Project (other than the
Members' Lodge) in the Agricultural District, nor impair the rights and obligations of any Parties
under other provisions of this Agreement.
3.63 County Support. The County shall support Oceanside's
application. If the LUC grants Oceanside's boundary amendment application on terms and
conditions accepted by Oceanside, the County Administration shall take such actions as may be
required to allow the Hawaii County Council to vote upon ordinance amendments and/or such
other appropriate documents, including but not limited to amendments to the Hokuli'a Project
Approvals, as may be required to remove the agricultural requirements from any ordinances and
other approvals relating to Hokuli' a, including without limitation Hawaii County Ordinance 96-
8.
3.7 Implementation of Agricultural Plan. Oceanside shall implement the
Hokuli'a agricultural plan, for so long as Hokuli'a remains within the Agricultural District, in the
following manner:
3.7.1 The CC&Rs shall require that agricultural activities be
conducted on certain Hokuli'a common areas and on each Hokuli'a lot, and Oceanside shall
enforce such provisions, as long as Oceanside controls the association of Hokuli'a lot owners.
3.7.2 Oceanside shall continue to install the improvements needed to
provide non-potable irrigation water to each Hokuli a lot for agricultural use.
3.73 In creating any new subdivisions at the Hokuli'a Project,
Oceanside shall cause the aggregate area designated for agriculture use within such subdivision
to he at least twenty percent (20%) of total lot area in such subdivision.
3.7.4 For so long as Oceanside controls the association of Hokuli'a
lot owners, Oceanside shall cause agriculture to be planted on each Hokuh'a lot prior to
occupancy of any home on such lot.
3.7.5 Oceanside shall, when it applies to the County for approval of
any future Hokuli' a subdivision, submit to the County a specific plan identifying the areas to be
cultivated in such subdivision and the plant materials to be grown in such areas.
3.7.6 Notwithstanding anything in this Section 3.7, the obligations
described in this Section 3.7 shall terminate if (i) the LUC grants and Oceanside accepts the land
use boundary amendments contemplated by Section 3.6 above or (ii) if Hawaii State law is
amended (or interpreted by the State Supreme Court) to state that homes on lands like those
present at the Hokuli'a Project need not be "farm dwellings" or otherwise associated with
agricultural activity in order to be lawful under HRS Chapter 205.
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LSF11~338W3.1
3.8 Extension of Time For Performance of Oceanside's Commitments to the
County. As a result of the delay created by the Litigation, the County Administration shall grant
to Oceanside, as permitted by the Zoning Code and other applicable law, such reasonable
extensions of time as may be required to complete and satisfy Oceanside's obligations under the
Hokuli'a Project Approvals, including but not limited to the construction of the Bypass
Highway, and to satisfy pertinent conditions under the Hokuti'a Project Approvals. To the
extent permitted by applicable law, the County shall also renew any permits and approvals
previously granted to Oceanside, which permits and approvals may have expired during the tern
of the Litigation, and the County shall grant reasonable extensions of any existing permits and
approvals, in order to offset the effect of the Litigation on Oceanside's ability to do the things
authorized by such permits and approvals.
4. AFFORDABLE HOUSING
4.1.1 Construction of Affordable Housing Units. Oceanside shall
cause 100 units of affordable housing to be constructed within the Kona area within five years of
the Effective Date of this Agreement in accordance with County ordinances and regulations in
effect at the time of construction.
4.1.2 Construction of Additional Affordable Housing Units. Within
five years after Oceanside obtains final subdivision approval for additional homesites at the
Hokuli'a Project, Oceanside shall cause additional affordable housing units to be constructed
within the Kona area, in accordance with County ordinances and regulations in effect at the time
of construction, so that the total number of affordable housing units that Oceanside has caused to
be constructed pursuant to this Section 4 is equal to twenty percent (201/o) of the total number of
homesites created by Oceanside at Hokuli'a and at affordable housing sites.
5. KONA SCENIC PARK
5.1 Land Dedication. Subject to obtaining the necessary governmental
permits and approvals, Oceanside shall dedicate approximately three acres to the Kona Scenic
Park (the "Park Addition"), in addition to the two acres committed during the 1990's. Oceanside
shall make the dedication of the Park Addition within ninety days after receiving all the
necessary permits and approvals for such donation. The County shall cooperate in expediting its
review and determination of any permit or approval necessary for the Park Addition. The
County shall accept dedication of the Park Addition.
5.2 Additional Facilities. Subject to obtaining the necessary permits and
approvals, Oceanside shall construct, within the Park Addition, a pavilion approximately 1,000
square feet in size, a pavilion roughly 500 square feet in size, public restrooms and additional
parking. Oceanside shall begin construction of these facilities within one hundred eighty days
after receiving all the necessary permits and approvals. Once built, these facilities will be
dedicated to the County for public use. The County shall cooperate in expediting its review and
determination of any permit or approval necessary for any improvement to be built in the Park
Addition.
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6. CULTURAL RESOURCES
6.1 Park and Cultural Sites Entity. Within ninety days after the Effective
Date, Oceanside shall form a new non-profit entity (the "Park and Cultural Sites Entity"). The
organizational documents for this entity shall include articles of association or incorporation, as
well as bylaws.
6.2 P se. The permitted purposes of the Park and Cultural Sites Entity
shall include the following:
6.2.1 Preservation, operation, and maintenance of the Shoreline Park
and cultural, historical and burial sites located elsewhere within Hokuli'a, in a manner consistent
with the provisions of the Shoreline Public Access Plan and the Project Preservation Plan;
6.2.2 Development of educational materials and programs designed
to encourage a deep understanding of and appreciation for the importance of the cultural
resources at the Hokuli' a Project and developing standards for the proper maintenance of and
care for such resources. In particular, these efforts shall include the development of an
educational package and acculturation program for the benefit of people new to Hawaii or to
Kona. Oceanside shall include such materials in the information provided by Oceanside to
persons and entities that buy homes or home sites from Oceanside;
6.2.3 Appointment of a Cultural Liaison to work with the Hokuli'a
descendants pursuant to Section 13.8 of this Agreement; and
6.2.4 Preservation, operation and maintenance of. (a) the Trail
pursuant to Section 10.6 of this Agreement; (b) Old Cart Road pursuant to Section 10.10 of this
Agreement; and (c) the Canoe Landing pursuant to Section 16.4 of this Agreement.
6.3 Delesation. The Park and Cultural Sites Entity shall have the authority to
delegate some or all of its responsibilities to others. The Park and Cultural Sites Entity may
enter into agreements with a third-party, including The Kuleana Foundation (discussed in
Section 6.8 below), pursuant to which the third-party will have the authority (i) to manage the
preservation, operation and/or maintenance of some or all of the Shoreline Park and the cultural,
historical and burial sites located elsewhere within the Hokuli'a Project and (ii) to perform any
or all of the responsibilities of the Park and Cultural Sites Entity under other provisions of this
Agreement.
6.4 Membershiu. Consistent with the existing agreements with the County,
Oceanside and Hokuli'a Lot owners will be the members of the Park and Cultural Sites Entity
and will appoint its board of directors.
6.5 Organizational Documents. The Park and Cultural Sites Entity's
organizational documents shall release from liability all individuals serving as directors, officers
or Cultural Liaison, and provide indemnities for all such persons, in each case to the fullest
extent permitted by law. Such organizational documents shall also expressly provide that in the
9
1-SF/7338063.1
event of any claim against directors, officers or the Cultural Liaison, or against the Park and
Cultural Sites Entity, the claims shall be submitted to binding arbitration.
6.6 Advisory Board. Oceanside shall cause the Park and Cultural Sites Entity
to establish, promptly after its formation, an advisory board ("Advisory Board") whose purpose
will be to provide advice and guidance to the Park and Cultural Sites Entity regarding the
preservation, operation, and maintenance of the Shoreline Park and cultural, historical and burial
sites within Hokuli a. The Advisory Board shall have approximately twenty members and shall
be comprised of representatives designated by Oceanside, Hokuli'a lot owners, PKO (which
shall be allowed to designate individuals to hold two seats), other descendants, the County,
kuleana owners and other appropriate groups.
6.6.1 Information Provided to the Advisory Board. The
organizational documents of the Park and Cultural Sites Entity shall require it to provide to the
Advisory Board, on at least a quarterly basis, information relating to the status, operation,
maintenance and preservation of the Shoreline Park and cultural, historical and burial sites within
Hokuli'a.
6.6.2 Consultation. Oceanside, the Board of Directors of the Park
and Cultural Sites Entity, and any entity to which the Park and Cultural Sites Entity may delegate
any of its authority to manage the Shoreline Park and/or cultural, historical and burial sites
within the Hokuli'a Project, shall consult with the Advisory Board with respect to the following
matters:
6.6.2.1 All plans, policies and practices of the consulting group
or entity relating to the improvement, operation or use of any part or all of the Shoreline Park. In
the case of plans, policies and practices to be adopted in the future, and any changes to existing
plans, policies and practices, this consultation shall occur before such plans, policies, practices or
modifications are submitted to any County or State agencies or otherwise finally adopted.
6.6.2.2 All plans, policies and practices of the consulting group
or entity regarding the treatment of cultural, historical and burial sites at Hokuli'a. In the case of
plans, policies and practices to be adopted in the future, and any changes to existing plans,
policies and practices, this consultation shall occur before such plans, policies, practices or
modifications are submitted to any County or State agencies or otherwise finally adopted.
6.6.2.3 The choice of any firm or individual retained by
Oceanside to conduct archaeological work, or to monitor construction work, at the Hokuli'a
Project in the future.
6.6.2.4 The roles of, and the resources being devoted by, the
State and County in the management of cultural, historical and burial sites at the Hokuli'a
Project. Oceanside shall have no duty to consult under this Section 6.6.2.4, after Oceanside no
longer owns any land on which such cultural, historical or burial sites are located.
6.7 Funding. The Park and Cultural Sites Entity shall be funded as follows:
10
I•SF/7338063.I
6.7.1 Sales by Oceanside or Front Nine of Hokuli'a Lots. Oceanside
and Front Nine LLC, a limited liability company affiliated with Oceanside, shall contribute to the
Park and Cultural Sites Entity one-fourth of one percent of the actual gross sale price in any sales
by Oceanside or Front Nine LLC of Hokuli'a homes and/or lots to an independent buyer after the
Effective Date.
6.7.2 Resales of Hokuli'a Lots. Within three months after the
Effective Date, Oceanside shall cause the CC&Rs to be amended to provide that, upon each
future resale (in perpetuity) of any home and/or lot at Hokuli'a, the seller shall contribute to the
Park and Cultural Sites Entity one-fourth of one percent of the actual gross sales price in such
resale, except that no contribution shall be required pursuant to this Section 6.7.2 with respect to
the sale by any person or entity of a lot and/or home owned by such person or entity as of the
date on which such amendment is recorded. Oceanside shall, however, give persons and entities
who own homes and/or lots upon recordation of such amendment the option, at their election, to
agree to be subject to this provision.
6.8 The Kuleana Foundation. Oceanside has reached an understanding with a
descendant of the lands within Hokuli'a, Mr. John De Fries, who, with the guidance of others,
including particularly many other descendants of the lands within Hokuli'a and Hokuli' a
residents, will carefully coordinate the planning for a new community and culturally based non-
profit foundation - "The Kuleana Foundation" - which will seek a long-term agreement, with the
Park and Cultural Sites Entity, to manage and care for many if not all of the public, cultural,
historical and burial resources at the Hokuli'a Project. Oceanside shall cause Mr. De Fries to
consult with PKO as he moves forward with the formation of this new foundation.
7. AMENDED DECISION
7.1 Entry of Amended Decision. The Parties agree to ask the Court for a
Court-assisted settlement conference, in which the Parties will discuss whether the Final
Judgment provisions dealing with Count IV of the Fifth Amended Complaint may be revised,
based on this Agreement and other factors, (i) to allow Oceanside to proceed with the
development of Hokuli'a (modified as provided herein), (ii) to leave all other provisions of the
Final Judgment in tact and (iii) to protect all Parties from further litigation asserting claims
against Hokuli'a like those advanced in such Count IV or asserting claims against the Plaintiffs
based on the claims they asserted in such Count IV. Alternative approaches to a revised Final
Judgment may be presented to the Court for consideration, including the approach embodied in
the proposed stipulation of facts, order and amended final judgment prepared by Oceanside and
provided to the other Parties prior to execution of this Agreement. The Plaintiffs acknowledge
that, if an approach other than the one reflected in those documents is proposed for
consideration, Oceanside will need protection against claims described in subsection (iii) above
equivalent to the protection provided by the documents prepared by Oceanside. In the event that
the Final Judgment is modified as a result of this process to contain terms and conditions
acceptable to the Parties, the approved modified Final Judgment shall constitute an "Amended
Decision" for purposes of this Agreement. Exhibits 2 and 3 to this Agreement have been left
intentionally blank.
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I-,F/7338063 I
S. HOKULI'A FOUNDATION
8.1 Formation of Foundation Within ninety days after the Effective Date,
Oceanside shall establish a foundation (the "Hokuli a Foundation") which shall seek tax exempt
status. The purposes of the Hokuli'a Foundation will include, but not be limited to, advancement
within the Kona community of affordable housing, health care, education and Native Hawaiian
culture. The organizational documents for this entity shall include articles of association or
incorporation, as well as bylaws.
8.2 Board of Directors. The Board of Directors of the Hokuli a Foundation
shall consist of a diverse group of approximately twenty community-minded individuals,
including individuals designated by Hokuli'a Lot owners and the County Administration. For so
long as they wish to do so, the following individuals may serve on this Board of Directors:
Jimmy Medeiros, Jack Kelly, Charles Flaherty, Patrick Cunningham and Michele Wilkins.
8.3 Organizational Documents. The Hokuli' a Foundation'sorganizational
documents shall release from liability all individuals serving as directors or officers of such
entity and provide indemnities for all such directors and officers, in each case to the fullest extent
permitted by law. Such documents shall also expressly provide that in the event of any claims
against directors or officers of the Hokuli'a Foundation, or against the Hokuli'a Foundation, the
claims shall be submitted to arbitration.
8.4 Fundine. Oceanside shall provide the following funding to the Hokuli'a
Foundation.
8.4.1 Sales by Oceanside or Front Nine LLC of Hokuli'a Lots.
Oceanside and Front Nine LLC shall donate to the Hokuli'a Foundation one and three-quarter
percent of the actual gross sales price in any sale by Oceanside or Front Nine LLC of any
Hokuli'a home and/or lot to an independent buyer after the Effective Date.
8.4.2 Resales of Hokuli'a Lots. Within three months after the
Effective Date, Oceanside shall cause the CC&Rs to be amended to provide that, upon each
future resale (in perpetuity) of any home and/or lot at Hokuli'a, the seller shall contribute to the
Hokuli'a Foundation one-fourth of one percent of the actual gross sales price in such resale,
except that no contribution shall be required pursuant to this Section 8.4.2 upon the resale by any
person or entity of a home and/or lot owned by such person or entity on the date on which such
amendment is recorded. Oceanside shall, however, give persons and entities who own homes
and/or lots upon recordation of such amendment the option, at their election, to agree to be
subject to this provision.
8.4.3 Assignment of Reimbursements Pursuant to Development
Agreement. Oceanside shall contribute to the Hokuli'a Foundation any reimbursements that
Oceanside may receive in connection with the Bypass Highway pursuant to Section 15 of the
Development Agreement.
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1-SF/7338063.1
8.5 Use of Hokuli'a Foundation Funds. The Hokuli'a Foundation's
organizational documents shall allow the Hokuli'a Foundation to use its funds for particular
purposes, including those specifically identified in Section 8.1, subject to the following:
8.5.1 Affordable Housing. Any funds contributed to the Hokuli'a
Foundation pursuant to Section 8.4.3 shall be used to support the development and use of
affordable housing in the Kona area
8.5.2 Scholarships. During the first five years of its existence, the
Hokuli'a Foundation shall contribute or dedicate not less than $500,000 to the funding or
retirement of student loans, with an emphasis on encouraging Kona residents to seek higher
education and/or to return to Kona upon completion of that higher education.
8.53 Drug Education and Treatment. During the fast five years of
its existence, the Hokuli'a Foundation shall contribute or dedicate not less than $500,000 to
programs intended to provide education relating to drug use and/or treatment and rehabilitation
for drug use and/or dependency.
85.4 Public School Teacher Salaries. During the first five years of
its existence, the Hokuli'a Foundation shall contribute or dedicate not less than $500,000 to
programs intended to supplement the salaries of public school teachers in Kona.
8.5.5 Kona Community Hospital. During the first five years of its
existence, the Hokuli'a Foundation shall contribute or dedicate not less than $500,000 to the
Kona Community Hospital, for use by the hospital to enhance its ability to serve the Kona
community.
In the event that the Hokuli'a Foundation does not receive sufficient funds from other sources in
sufficient time to fulfill the obligations described in this Section 8.5, Oceanside shall contribute
(or cause to be contributed) funds to the Hokuli'a Foundation to offset the funding deficit.
8.6 Solicitation of Additional Donations. Oceanside shall send a letter to the
owner of each Hokuli'a lot or home once each year, for at least ten years after the Effective Date,
asking such home or lot owner to consider making a donation to the Hokuli'a Foundation, which
would be authorized to use any funds donated in response to such requests for the purposes
stated in Section 8.1.
9. PU'U OHAU
9.1 Abandonment of Development. Oceanside shall not develop lots in the
area (the `Bench Area") included within Lots 26-30, as depicted on Oceanside's recorded Phase
2 lot plat.
9.2 Additional Acreage. Oceanside also shall not develop an area comprised
of approximately 6 acres, contiguous to, and on the mauka side of, the Pu'u Ohau Preserve (the
"Pu'u Ohau Cultural Area'). The Pu'u Ohau Cultural Area is generally depicted on Exhibit 4
attached hereto.
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I-5F/7338063A
ADDENDUM TO SETTLEMENT AGREEMENT
This Addendum to Settlement Agreement (the "Addendum") is made by and among 1250
Oceanside Partners ("Oceanside"), the County of Hawaii ("County"), the Hawaii State
Department of Land and Natural Resources ("DLNR"), the Hawaii State Department of Health
("DOH"), Protect Keopuka Ohana ("PKO"), and Walter John Kelly ("Kelly"), Charles Ross
Flaherty, Jr., ("Flaherty") Patrick M. Cunningham (`Cunningham") and Michele Constans
Wilkins (`Wilkins") (Kelly, Flaherty, Cunningham and Wilkins are collectively referred to
herein as the "Individual Plaintiffs"). Oceanside, County, DLNR, DOH, PKO and the Individual
Plaintiffs are referred to collectively herein as the "Parties" and each individually as a "Party."
RECITAL
The Parties have each signed or are signing a Settlement Agreement, in the form attached
hereto as Exhibit "A," relating to the project commonly known as Hokuli'a located in Kona,
Hawaii (the "Settlement Agreement"), on the understanding that this Addendum amends and
supplements, and for all purposes will be treated as part of, such Settlement Agreement (the
Settlement Agreement, as amended and supplemented by this Addendum, is referred to
hereinafter as the "Final Settlement Agreement").
NOW, THEREFORE, in consideration of the foregoing recital and in consideration of
the mutual terms, covenants, conditions, promises and benefits contained in the Settlement
Agreement and herein, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS. For the purposes of this Addendum, capitalized terms shall
have the meanings set forth in the Settlement Agreement.
2. EFFECTIVE DATE. The Final Settlement Agreement shall be effective as of
the date (`Effective Date") when all of the following conditions have occurred: (a) all Parties
have signed the Settlement Agreement and the Addendum; and (b) the Court in the Litigation has
entered an Amended Decision.
3. AMENDED DECISION. The following new Section 7.2 is hereby added to the
Settlement Agreement:
7.2 The Parties expressly state that no agreement has been reached for all
Parties jointly to submit a single form of proposed Amended Decision to be presented to
the Court. Each Party is free to stipulate or present such Party's own proposed language
for the Amended Decision at the appropriate time as requested by the Court, if applicable.
4. BYPASS HIGHWAY. The transportation section of the County General Plan
states "Construct a scenic corridor from Keauhou above the Kealakekua cliffs to Napo'opo'o as
both North and South Kona Courses of Action." Therefore, the County Administration, at the
request of Plaintiffs, shall work with the Plaintifts to draft, introduce, and support legislation
before the County Council that would (1) allow for the designation of the scenic corridors in the
County, and (2) specifically designate the Bypass Highway as a scenic corridor, except that
portion of the bypass right-of-way passing through Hokuli'a. Oceanside has not requested that
1
the County take the actions described in this Section and does not waive any rights it may have
with respect to such actions.
5. HOKULFA FOUNDATION.
5.1 Preamble. Oceanside and the Plaintiffs believe that the community
benefits to the public shall be the cornerstone of any settlement of the Litigation. To this end, in
addition to the public benefits presented in the Settlement Agreement, Flaherty, Cunningham and
Wilkins have further negotiated and obtained Directed Accounts to be directed by them, in which
funds will be disbursed to charities and non-profit organizations of their choosing within the
community. None of the funds in these directed accounts will be used to benefit the Plaintiffs,
but will be disbursed at the direction of the named individuals. In this way, Flaherty,
Cunningham and Wilkins may direct contributions to causes in our community at the grass-roots
level. For example, Cunningham as an environmental plaintiff believes that funds should assist
ocean/marine education, activities and protection of the offshore water resources. To this end, he
intends to support such non-profit entities as the Keauhou Bay Association. Flaherty and
Wilkins will also be directing funds to various charities and non-profit organizations that benefit
our local community at the grass-roots level.
5.2 Operative Provisions. New Sections 8.7 and 8.8, containing the following
terms, are hereby added to Section 8 of the Settlement Agreement:
8.7 Additional Uses of Hokuli'a Foundation Funds, as Directed by Flaherty.
Cunningham and Wilkins. The Hokuli'a Foundation shall establish, on its books and
records, three separate accounts, referred to hereinafter as the "Flaherty Directed
Account," the "Cunningham Directed Account" and the "Wilkins Directed Account."
Until such time as a total of $400,000 has been credited to each such account, the
Hokuli'a Foundation shall credit 5% of any contributions received by the Hokuli'a
Foundation (other than contributions received pursuant to Section 8.4.3, which are to
used by the Hokuli'a Foundation solely to support affordable housing) to each such
account. For example, if $50,000 is received by the Hokuli'a Foundation as the result of
the sale of Hokuli'a lots, the Hokuli'a Foundation shall credit $2,500 to each of the three
accounts, until a total of $400,000 has been credited to each of the three accounts.
Flaherty, Cunningham and Wilkins shall not receive any personal benefit from monies
donated from these Directed Accounts. Monies credited to the Flaherty Directed
Account shall be donated by the Hokuli'a Foundation to a qualified non-profit
organization(s), at the direction of Flaherty, with each donation to be accompanied by a
letter stating that the funds are being so donated at the request of Mr. Flaherty. Monies
credited to the Cunningham Directed Account shall be donated by the Hokuli'a
Foundation to a qualified non-profit organization(s), at the direction of Cunningham, with
each donation to be accompanied by a letter stating that the funds are being so donated at
the request of Mr. Cunningham. Monies credited to the Wilkins Directed Account shall
be donated by the Hokuli'a Foundation to a qualified non-profit organization, at the
direction of Wilkins, with each donation to he accompanied by a letter stating that the
funds are being so donated at the request of Ms. Wilkins. The foregoing notwithstanding,
the individual with authority to direct the donation of funds from any of the three
accounts may, in such individual's sole discretion, advise the Hokuli'a Foundation in
2
writing that such individual wishes to relinquish the right to direct any additional
donations from such account, in which event no further funds shall he credited to such
account and any credits then in such account shall be transferred to the general account of
the Hokuli'a Foundation (after making such donations as may have been directed before
the power of direction was relinquished). The existence of the accounts described in this
Section 8.7 shall not disqualify Flaherty, Cunningham or Wilkins from serving on the
Board of Directors of the Hokuli'a Foundation. After the Hokuli'a Foundation has
credited $400,000 to a Directed Account, the Hokuli'a Foundation shall have no further
obligation to credit additional amounts to such Directed Account. Any funds credited to
a Directed Account shall be invested, until they are disbursed in accordance with this
Section 8.7, in an interest-bearing investment account, with all interest earned to be
credited to such Directed Account. Any interest thus credited to a Directed Account shall
not be treated as part of the $400,000 which the Hokuli'a Foundation is to credit to such
account.
8.8 Further Assurances Relating to Directed Accounts. Oceanside agrees (1)
that the Hokuli'a Foundation shall credit not less than $100,000 to each of the three
Directed Accounts within 60 days after the Effective Date (not including any interest
earned on any amounts previously credited) and (2) that the Hokuli'a Foundation shall
credit not less than the following amounts to each of the three Directed Accounts by the
following dates (again not including any interest earned on amounts previously credited):
$200,000, as of the second anniversary- of the Effective Date;
$300,000, as of the third anniversary of the Effective Date; and
$400,000, as of fourth anniversary of the Effective Date.
Oceanside shall make such donations to the Hokuli'a Foundation, for crediting to the
Directed Accounts, as may be needed to insure such levels of funding. In the event that
Oceanside makes such contributions, Oceanside shall be entitled to an offset against
future donations to be made by Oceanside to the Hokuli'a Foundation pursuant to the
Section 8.4.1 of the Settlement Agreement, to the extent that such donations would be
credited to the Directed Accounts.
6. INDEMNITY. Oceanside shall indemnify and provide a legal defense for Kelly,
Flaherty, Cunningham, Wilkins and PKO from any and all actions filed by third parties and
entities that arise from the Litigation or the Final Settlement Agreement.
7. RIGHT TO ENFORCE WATER INJUNCTION. Notwithstanding any other
provision in the Settlement Agreement, PKO and the Individual Plaintiffs do not waive any right
they may have to enforce the stipulated permanent injunction referred to in Section 16.1 of the
Settlement Agreement, as such permanent water injunction may be modified. As contemplated
by such Section 16.1, the Parties intend to ask the Court to amend the existing stipulated
permanent injunction to eliminate the provisions establishing a court-supervised water
monitoring program, based on the water monitoring provisions set forth in the Settlement
3
Agreement. A copy of the proposed form of revised stipulated permanent injunction, which the
Parties agree to submit to the Court for its consideration, is attached hereto as Exhibit "B."
8. RIGHT TO OBSERVE WORK DONE IN PERFORMING BASE LINE
WATER QUALITY STUDY AND MODIFIED WATER MONITORING PROGRAM.
The Individual Plaintiffs shall have the right to observe the data collection work done for the
Modified Water Monitoring Program pursuant to Section 16.2 and the Baseline Study pursuant
to Section 16.3 of the Settlement Agreement, to the extent practical. Oceanside shall ask the
third parties performing this work to give Oceanside and the Plaintiffs notice of their work
schedules, to the extent practical.
9. PUBLIC SHORELINE ACCESS. Oceanside confirms that the Haleki'i Street
Extension is to be dedicated to the County, and Oceanside agrees to grant a public access
casement over that portion of F Road which connects the Haleki'i Street Extension to the
Shoreline Park. The dedication and easement described in the preceding sentence shall each be
made or granted not later than 30 days after the Bypass Highway is opened. Oceanside agrees
that there will be no gate on the Ialeki'i Street Extension or on the portion of F Road that is
subject to the public access easement. Oceanside also confirms that Oceanside intends to
comply with the provisions of the CDUA for the Shoreline Park, including paragraph 26 of such
CDUA which provides as follows:
"The applicant shall provide for public access to the park at no charge, provided that
reasonable restrictions may be imposed on such access to protect the park from overuse
and activities prohibited by law. Public access to the park shall be available from dawn
to dusk; provided that, after dusk and before dawn, access shall be available on a
controlled basis and allowed by permit unless otherwise provided for in this approval."
10. AMENDMENTS TO SECTION 17 OF SETTLEMENT AGREEMENT.
10.1 Section 17.1 of the Settlement Agreement is hereby amended and restated
to read as follows:
17.1 Legislation to Amend County Grading and Grubbing Ordinance to
increase Protection for Cultural Resources and Marine Environment. In an effort to
minimize flooding and provide greater protection for cultural, historical and burial sites,
and the marine environment, and at the request of the Plaintiffs, the County
Administration shall work with Plaintiffs to draft, introduce (within six months after the
Effective Date) and support before the County Council legislation that would amend
Chapter 10 and Chapter 27 of the Hawaii County Code, consistent with the public
interest. The focus of these cooperative efforts shall be to amend Chapter 10 and Chapter
27 of the Hawaii County Code in a manner that would increase the level of education and
enforcement regarding minimization of flooding and protection of cultural, historical and
burial sites and the marine environment. Such amendments could include:
17.1.1 Modilying "Section 10-1 Purpose" to read as follows: "The
purpose of this chapter is to provide minimum standards to prevent flooding, soil erosion,
and sedimentation, thereby protecting public health, safety and welfare, public and
4
private property, historic and cultural sites, state nearshore water quality standards, rivers,
streams, forests, watersheds, water aquifers, and all other land and natural resources
through the regulation of grubbing and grading associated with construction, agriculture
and other earthmoving activities."
17.1.2 Requiring the County Department of Public Works ("DPW") to
independently verify the natural watercourses and drainage patterns represented in permit
application plans and map through inspection and inquiry, such as reference to past
permits granted to adjacent TMKs.
17.1.3 Preventing DPW from allowing the alteration of natural
watercourses insofar as those alterations affect neighboring properties and requiring
mitigation by the permit applicant of any redirection of water flows into existing natural
watercourses.
17.1.4 Requiring DPW to prepare flooding potential assessment reports,
and attaching such reports to all approved permits.
17.1.5 Requiring DPW to map all grubbing and grading permits issued by
TMK. Any flooding observations made by the public and/or DPW employees or
flooding complaints made by the public would be documented and filed by TMK. The
DPW would be required to accumulate this and other information to make an annual
assessment of the specific and cumulative impacts of grubbing/grading permits on natural
watercourses and drainage patterns throughout the County. The DPW would be required
to investigate any significant changes noted in the annual grubbing/grading impact
assessment map and supporting documentation to the County Council, together with a
plan of action to resolve changes which resulted in additional flooding.
17.1.6 Requiring permit applications to identify the licensed heavy
equipment operator(s) that will perform grubbing/grading activities.
17.1.7 Requiring DPW to track permit violations by applicant, TMK, and
licensed operator, and requiring DPW to present an annual report to the County Council
of permit violations by applicant, TMK, and licensed heavy-equipment operator.
17.1.8 The implementation of educational processes as a part of the
permitting process;
17.1.9 Adding to Chapter 10 detailed definitions of activities failing under
the categories of grubbing, removal of surface vegetation, and grading, to provide better
notice to the permit holder of permitted activities;
10.2 The following new Section 17.6 is hereby added to the Settlement
Agreement:
17.6 In an effort to provide greater protection for cultural, historical and burial
sites, and at the request of the Plaintiffs, the County Administration shall work with
Plaintiffs to draft, introduce (within six months after the Effective Date) and support
5
before the County Council IegisMan that would amend Chapter 23 of the Hawaii
Comty Code, consistatt with the public intere®L The (bens of theca cooperative efforts
shall be to amend Chapter 23 of the Hawaii County Code to require comparisons of
SHPD Archaeological Site map or my other SHPD documentation of historic and
cultural site location, size, andlor tigaificaoce associated with an applicant's paopaty to
all original and revised subdivision plat maps filed with the County after the Effective
Due. The legislation could require any diffmences betwam boundaries ?MIYOr locallm
of historic prraervadon easements to be resolved to the benefit of the cahral site being
prorated.
11. AUTHORTI'Y. The parsons Aping below represent that they have the authority
to bind their respective Patty and that all awmary, board of supeMsors', board of directors',
shareholders' or other approvals have been obtained.
12. SIGNATURES ON REHALF OF PKO. This Addendum is being signed on
behalf of PKO by two duly authorized offieas. By signing this Addendum, such officers ratify
and affrtm to Settlement Apeameot, as amended end m4VIemm tad by this Addendum, on
behalf of PKO.
13. COUNTERPARTS. This Addendum may be t wcuted in one or more
ce unteapatp, and all the ounramMu shall conuimte but me and rho am Addendum,
notwithstanding that all parties are not signatories to the same or original comiterpart.
14. CONFLICTS BETWEEN SETTLEMENT AGREEMENT AND
ADDENDUM. In the evert of any conflict between the Settlement Agreement and this
Addeafitm, this Addendum shall prevail
IN VM ai M WEMMOF, the Parties bave executed ono of more copies of this
Addendum as of the Effective Date.
1250 OCEANME PARTNERS
By Red Hill 1250, tone.,,General Partner
By: Ly Anderson
Title: Chairman
COUNTY OF HAWAII APPROVED AS TO
FORM AND LEGALITY:
gy Harr i i DEPUTY CORPORA ON COUNSEL
Title: Mayor COUNTY OF HAWAII
Dote ~y> 2, ?sue
6
HA A TATE DEPART OF LAND AND NATURAL RESOURCES
- a
AP ROVED AS FORM
y; later t!Ng
Title: hair erso
Oo„n ~ry.n G ero. rar,r n1 Hn~nliHAWAII STATE DEPAR OF HEALTH
By:
Title:
PROTECT KEOPUKA OHANA
13y:
Title:(`Q
By:
Title: y,[jg&V
WALT/ER JOHN KELLY
CHARLES ROSS F AHERTY, JR
PATRICK( /M. MGHAM
-
~~MIyy~~C ~,IHELE CONST~Al `NS WILKINS
tY lA A,
7
HAWAII STATEPEPARrAEWOFfAWD AND NATARALRESOtMCE$ .
Ti la:
HAWAII STATE DEPARThOM1' OF HEALTH
APPROVED AS TO
FORM AND LEGALITY;
PROTECT KBOPl7IEA MUNA 4A. ` .
HEIDI M. RUIN
.i~ DEPARTMENT OF THE
ATTORNEY GENERAL
Tide• 2_U
Title.
lllf'
WALTER JOHN KELLY
CHARLES ROSS Fl~RTY, JR.
PATRICK N. OHAM
MICHELE COMAM WRKM
izl.
7
EXHIBIT "A" TO ADDENDUM TO SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is made by and among 1250
Oceanside Partners ("Oceanside"), the County of Hawaii ("County"), the Hawaii State
Department of Land and Natural Resources ("DLNR"), the Hawaii State Department of Health
("DOH"), Protect Keopuka Ohana ("PKO"), and Walter John Kelly, Charles Ross Flaherty, Jr.,
Patrick M. Cunningham and Michele Constans Wilkins (collectively referred to herein as the
"Individual Plaintiffs''. Oceanside, County, DLNR, DOH, PKO and the Individual Plaintiffs are
referred to collectively herein as the "Parties" and each individually as a "Party."
RECITALS
A. WHEREAS, Oceanside is the developer of the project commonly known
as Hokuli'a located in Kona, Hawaii (hereinafter referred to as the "Project" or "Hokuli'a");
Hokuli'a's development plan envisions the construction of 730 agricultural lots, each at least
one-acre in size; a twenty-seven hole golf course, golf clubhouse and related amenities; an
eighty-unit members' lodge (the "Members Lodge'); and a 140-acre public shoreline park.
B. WHEREAS, the County issued a variety of approvals and entitlements
permitting development of the Project and entered into an April 20, 1998, Development
Agreement with Oceanside.
C. WHEREAS, the Individual Plaintiffs and PKO commenced a lawsuit
cneaptioned Kelly, et al. v. 1250 Oceanside Partners, Civ. No. 00-1-0192K (the "Litigation") in
the Third Circuit Court of the State of Hawaii (the "Court") alleging, inter alia, certain claims
regarding the Project.
D. WHEREAS, the Court entered a Third Amended Final Judgment in the
Litigation (the "Final Judgment") which contained a permanent injunction that barred further
development of Hokuli' a, other than the golf course and shoreline park.
E. WHEREAS, each of the Parties has appealed certain aspects of the Final
Judgment to the Hawaii Supreme Court (the "Appeal").
F. WHEREAS the Parties desire to resolve the disputes embodied in the
Litigation, the Appeal and certain related legal proceedings, on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing recitals and in consideration of
the mutual terms, covenants, conditions, promises and benefits contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties agree as follows:
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1. DEFINITIONS. For the purposes of this Agreement, the following terms shall
have the meanings set forth below:
1.1 Amended Decision. The term "Amended Decision" shall have the
meaning set forth in Section 7.1.
1.2 Bench Area. The term "Bench Area" shall have the meaning set forth in
Section 9.1.
1.3 Burial Treatment Plan. The terns `Burial Treatment Plan" shall mean that
certain Burial Treatment and Preservation Plan for Historical Sites at Hokuli'a dated March
2000.
1.4 Bypass Highway. The term "Bypass Highway" shall mean that bypass
highway between approximately Keauhou and Captain Cook, consisting of two (2) lanes with a
sufficient right-of-way for a total of four (4) lanes required in part to satisfy the conditions of
approvals granted to Oceanside and to alleviate traffic congestion on the Mamalahoa Highway.
The Bypass Highway is also referred to as the "Mamalahoa Highway Bypass" under Ordinance
Nos. 46-7,96-8 and 97-36.
1.5 CC&Rs. The term "CC&Rs" shall mean the covenants, conditions and
restrictions applicable to the Hokuli'a Project.
1.6 County. The term "County" shall refer to the County of Hawaii.
1.7 County Administration. The term "County Administration" shall mean
the Mayor of the County and the Mayor's cabinet.
1.8 Cultural Preserve. The term "Cultural Preserve" shall have the meaning
set forth in Section 14.3.1.
1.9 Development Agreement. The term "Development Agreement" shall
mean that certain Development Agreement between the County and Oceanside dated April 20,
1998, and recorded on April 30, 1998, in the Office of the State Bureau of Conveyances.
1.10 Dispute Party. The term "Dispute Party" shall have the meaning set forth
in Section 21.2.
1.11 DLNR. The term "DLNR" shall refer to the Department of Land and
Natural Resources of the State of Hawaii and all the divisions within said Department.
1.12 DOH. The term "DOH" shall refer to the Department of Health of the
State of Hawaii and all the divisions within said Department.
1.13 Effective Date. The term "Effective Date" shall have the meaning set forth
in Section 2.
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