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HomeMy WebLinkAboutRES 041 Draft 01 2008-2010COUNTY OF HAWAII RESOLUTION NO. STATE OF HAWAII 41 09 A RESOLUTION AUTHORIZING AND ACCEPTING THE GRANT OF NON- EXCLUSIVE EASEMENT FOR LIMITED PUBLIC ACCESS OVER PRIVATE ROADWAYS FOR TEMPORARY MAMALAHOA BYPASS THROUGH HOKULI`A PHASE I AND HALEKI`I STREET, IN THE DISTRICTS OF NORTH AND SOUTH KONA, ISLAND, COUNTY AND STATE OF HAWAII. WHEREAS, 1250 Oceanside Partners ("Oceanside") is the owner of those certain parcels located in the Districts of North and South Kona, County and State of Hawaii, and being the following Tax Map Key numbers: TMK: (3) 7-8-010:098, in North Kona TMK: (3) 7-9-005:081, in North Kona TMK: (3) 7-9-006:038, in North Kona TMK: (3) 7-9-012:034, in North Kona TMK: (3) 8-1-035:001 (portion), in South Kona (Haleki`i Street) TMK: (3) 8-1-035:004, in South Kona and more particulazly described in Exhibit "1" attached hereto; and WHEREAS, the Hawaii County Council authorized the County administration to enter into a Development Agreement with Oceanside, dated Apri120, 1998, and rezoned certain of Oceanside's lands to enable the Hokuli`a development; and WHEREAS, as a condition of said Development Agreement and rezonings, as well as pursuant to the Agreement for Regional Traffic Improvements dated September 16, 1999, Oceanside is legally obligated to construct a Mamalahoa Bypass Highway through Hokuli`a, from Ali`i Drive in Keauhou, through an intersection with an extension makai of Haleki`i Street, and continuing to a southern connection with Mamalahoa Highway in Napo`opo`o, to relieve serious traffic congestion on Maznalahoa Highway; and WHEREAS, Oceanside has substantially completed Phase I of said Mamalahoa Bypass Highway ("Bypass Phase I"), from Keauhou going south, including the extension of Haleki`i Street and its intersection with the Mamalahoa Highway Bypass, but due to factors such as the injunction in Kelly, et al. v. 1250 Oceanside Partners, et al., Civil No. 00-1-0192K, and the current worldwide contraction of development financing, Oceanside has not yet been able to complete said Bypass Phase I and Haleki`i Street extension intersection to dedicable condition; and WHEREAS, The Hawaii County Council has worked with the County administration to amend Oceanside's rezoning ordinances to allow for the use of the Bypass Phase I through its intersection with the Haleki`i Street extension to Mamalahoa Highway, as a temporary Mamalahoa Bypass on a trial basis during the hours of 3:30 to 6:30 p.m., Monday through Friday (except holidays), conditioned on the County providing various highway safety improvements for the affected communities; and WHEREAS, The Hawaii County Council has, through amendment of Ordinance 08-64, authorized the County administration to use either an easement or dedication for said trial use of the Phase I Bypass through Haleki`i Street; and WHEREAS, Oceanside has, for the benefit of the community, graciously consented to the proposed Grant ofNon-Exclusive Easement for Limited Public Access Over Private Roadways ("Grant of Easement"), substantially in the form attached hereto as Exhibit "1," to allow for said trial use of the Phase I Bypass through Haleki`i Street; and WHEREAS, said Grant of Easement contains waiver and release, insurance and defense, and indemnification and hold harmless provisions for the protection of Oceanside as it allows limited public use of the Phase I Bypass and Haleki`i Street extension over its private lands; and WHEREAS, compromise and release~of claims of the County exceeding $1,500, and prospective financial commitments of the County, are legislative prerogatives under Hawaii County Code section 2-9 and County Charter section 10-11; and WHEREAS, the Hawaii County Council finds that the execution of the Grant of Easement and the opening of the Phase I Bypass and Haleki`i Street under the conditions and limited terms set forth in Ordinances 08-58, 08-59, and 08-64, as may be amended, are in the public interest of traffic congestion relief and evaluation of the best use of the Mamalahoa Bypass. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that the Mayor is authorized to execute and accept the Grant of Easement on behalf of the County, in substantially the form set forth as Exhibit "1" attached hereto. O O BE IT FURTHER RESOLVED that a copy of this resolution be forwarded to: (1) Mayor William P. Kenoi; (2) the Department of Public Works; (3) Deputy Corporation Counsel Ivan M. Torigoe; and (4) 1250 Oceanside Partners, 76-6831 Ali`i Drive, Suite KI S, Kailua- Kona, Hawaii 96740. Dated: Kona , Hawaii, this 23rd day of January , 2009. INTRODUCED BY: ~' ~;~ ~;z COUNCIL MEMB OUNTY OF HAWAII COUNTY COUNCIL County of Hawaii Hilo, Hawaii 1 hereby certify that the foregoing RESOLUTION was by the vote indicated to the right hereof adopted b [he COUNCIL of the County ol'Hawai`i on January ~3, 2009 A'CTEST: ~ ~~~~ COUNTY CLERK CHAIRPERSON & PRESIDING OFFICER AYES NOES A6S EX ENRIQUES g FORD X GREENWELL R HOFF'MANN R IKEDA X NAEOLE g ONISHI g YAGONG g YOSHIMOTO }{ 9 0 0 0 Reference: C-93/Waived PWIRC RESOLUTION NO. 4Z it, i Draft 8 January 11, 2009 SUBJECT TO INTERNAL REVIEW AND FINAL APPROVAL AS TO CONTENTS Pagination is Continuous Through Text and Exhibit "C" GRANT OF NON-EXCLUSIVE EASEMENT FOR LIMITED PUBLIC ACCESS OVER PRIVATE ROADWAYS THIS INDENTURE is made this -day of , ; 2009, by and between 1250 OCEANSIDE PARTNERS, a Hawaii limited partnership, whose address is 78-6831 Alii Drive, Suite K-15, Kailua-Kona, Hawaii 96740, hereinafter referred to as the "Grantor" and the COUNTY OF HAWAII, a municipal corporation, whose address is ~ Street, Hilo, Hawaii 96720, hereinafter referred to as the "Grantee." The following recitals reflect the assumptions that the Grantor and the Grantee share in entering into this indenture: WHEREAS, the Grantor owns real property located in the Districts of North Kona and South Kona, County and State of Hawaii upon ';: ~~ ~i s ,r f, which the Grantor is constructing a development project known as "Hokuli'a;" and WHEREAS, as part of the Hokuli'a project, the Grantor constructed a roadway that is currently privately-owned and that is commonly referred to as the northerly portion of the Mamalahoa Highway Bypass and also constructed an extension of Haleki'i Street in a generally westerly (makai) direction from Haleki'i Street's current public, westerly `` (makai) terminus, which extension is currently privately-owned and is commonly referred to as the Haleki'i Street Extension; and WHEREAS, the Grantor owns the northerly portion of the Mamalahoa Highway Bypass and the Haleki'i Street Extension and the land underneath said roadways, but has not completed construction of all improvements or installation of all equipment, appliances, devices or ~' signage necessary for such roadways; and WHEREAS, the Grantor, pursuant to certain of its development entitlements, will, upon their completion, dedicate the Mamalahoa Highway {. Bypass and portions of the Haleki'i Street Extension to the Grantee at some ',,,; future date in accordance with existing change of zone and development agreement conditions; and ~~ WHEREAS, in order to provide for safe and efficient traffic ', movement on public roadways in the North Kona and South Kona region, the Grantee wishes to obtain from the Grantor a conditional, temporary and non-exclusive .easement over the northerly portion of the Mamalahoa '',1 2 it ' 1 Highway Bypass generally illustrated in Exhibit "A" attached hereto and over the easterly (mauka) portion of the Haleki'i Street Extension generally illustrated in Exhibit "B" attached hereto; and WHEREAS, in order to provide for safe and efficient traffic movement on public roadways in the North Kona and South Kona region, the Grantee intends to use the rights that it would acquire under such an `; easement to give the general motoring public the opportunity to use the easement area for limited and controlled vehicular access during the afternoon hours on week days, traveling over the northerly portion of the 1 Mamalahoa Highway Bypass in a north-to-south direction beginning at the ,~ existing terminus of Alii Drive at Keauhou, North Kona, County of Hawaii to the Haleki'i Street Extension, then in an easterly direction (mauka) on the Haleki'i Street Extension to the existing public, westerly (makai) terminus of '~~ Haleki'i Street and then through Haleki'i Street to its existing terminus at the ~~„ Mamalahoa Highway; and : WHEREAS, the Grantee intends to give the general motoring public the opportunity to use such an easement, and the area covered by the easement, during the hours of 3:30 o'clock, P.M. and 6:30 o'clock, P.M. on Monday, Tuesday, Wednesday, Thursday and Friday of each week, holidays excluded; and WHEREAS, the County Council for the County of Hawaii enacted several ordinances, including Ordinance Nos. 08-58, 08-59 and 08- 64, relating to various improvements that the Grantee intends to make on ', certain publicly owned or controlled streets, roads and roadway shoulders to '" 3 ~, r facilitate the general motoring public's use of such an easement, and the area covered by the easement, if the northerly portion of the Mamalahoa Highway Bypass and easterly (mauka) portion of the Haleki'i Street Extension were available for such use; and WHEREAS, the Grantor, Hokuli'a lot owners, their respective employees, guests, invitees and contractors and other persons who are designated and authorized by the Grantor, including without limitation, owners of parcels located in the coastal area near or adjoining the Hokuli'a project, will continue to use the northerly portion of the Mamalahoa Highway Bypass and easterly (mauka) portion of the Haleki'i Street Extension for their own, respective uses and intend to maintain such uses without interruption, interference or hindrance resulting from the general motoring public's use of the northerly portion of the Mamalahoa Highway Bypass and easterly (mauka) portion of the Haleki'i Street Extension; and WHEREAS, the Grantor is willing, for the benefit of the community, to accommodate the Grantee's desire to provide for safe and efficient traffic movement in the North Kona and South Kona region by granting to the Grantee anon-exclusive easement for the use of the northerly portion of the Mamalahoa Highway Bypass and easterly (mauka) portion of the Haleki'i Street Extension, as described in greater detail in the attached Exhibits, and free of compensation, subject, however, to certain limitations, prohibitions, restrictions, conditions, covenants, promises and other assurances set forth below; and 4 .- WHEREAS, pursuant to Ordinance Nos. 08-58, 08-59 and 08- .~ 64, this non-exclusive grant of easement is intended to be for a temporary, trial period, with an initial trial period of 180 days, and includes reporting provisions for the Grantor, the Grantee and the County of Hawaii County Council's evaluation as well as provisions for possible renewals of this non- exclusive grant of easement, now; therefore, WITNESSETH: The Grantor, for good and valuable consideration, the receipt of which is hereby acknowledged and for the limitations, prohibitions, restrictions, conditions, covenants, promises and other assurances contained in this grant ofnon-exclusive easement and on the part of the Grantee to be observed and performed (and on the part of the Grantee to cause the general . motoring public to observe), does hereby grant unto the Grantee a temporary, conditional non-exclusive easement ("easement") for limited roadway purposes on, over and across those parcels of land (collectively referred to as the "easement area") situate in the Districts of North Kona and , South Kona, County and State of Hawaii, to be used in common with others designated and authorized by the Grantor and consisting of a series of separate roadway parcels shown on the subdivision plat map for Subdivision Nos. 7287, approved by the County of Hawaii Planning Department on February 21, 2002, and described as follows: 5 • Northerly Portion of the Mamalahoa Hi~hway Bypass: Exhibit Identified by the following Tax Map Key Numbers "A" TMK: (3) 7-8-010:098, in North Kona TMK: (3) 7-9-005:081, in North Kona TMK: (3) 7-9-006:038, in North Kona TMK: (3) 7-9-012:034, in North Kona • Easterlu (Maukal Portion of the Haleki'i Street Extension Exhibit Identified by the following Tax Map Key Numbers "B" TMK: (3) 8-1-035:001 (portion), in South Kona (Haleki`i Street) TMK: (3) 8-1-035:004 in South Kona all of which are more particularly described and illustrated in Exhibit "A" and Exhibit "B" attached hereto. The northerly portion of the Mamalahoa Highway Bypass that constitutes a part of the easement area pursuant to this grant of non-exclusive easement is also referred to as the "northerly portion of the Mamalahoa Highway Bypass" and the easterly (mauka) portion of the Haleki'i Street Extension that constitutes a part of the easement area pursuant to this grant ofnon-exclusive easement is referred to as the "easterly (mauka) portion of the of the Haleki'i Street Extension." To the extent that references are contained in this grant ofnon-exclusive easement, or any exhibits attached hereto, to "Mamalahoa Highway Bypass" or "Hakeli'i Street Extension," such references shall be to the northerly portion of the Mamalahoa Highway Bypass and the easterly (mauka) portion of the Haleki'i Street Extension, respectively, unless the context requires otherwise. 6 r Any portion of the Mamalahoa Highway Bypass or Haleki'i Street Extension that is not described or delineated in Exhibit "A" or Exhibit "B" is excluded from the easement area and is not available to the Grantee or to the general motoring public's use for the purpose of this grant of non- exclusive easement, except as provided in paragraph 28, below. The Grantee shall hold the easement as a municipal corporation and in such capacity shall hold this non-exclusive easement for the use and benefit of the general motoring public, to be used in common with the Grantor, Hokuli'a lot owners, their respective employees, invitees, guests and contractors and others designated and authorized by the Grantor, SUBJECT, HOWEVER, TO the following limitations, prohibitions, restrictions, conditions, covenants, promises and other assurances, each of which is material to this grant ofnon-exclusive easement: 1. Permitted Use. The Grantee shall be entitled to let the general motoring public use the easement area for throughway vehicular access on, over and through the easement area (with no parking or stopping, except for mechanical breakdown or other emergencies, on shoulders or other portions of the easement area), subject to all of the limitations, prohibitions, restrictions, conditions, covenants, promises and other assurances contained in this grant of non-exclusive easement, which use the , Grantor may withhold, suspend or terminate in accordance with the provisions of Paragraphs 5, 6.d, 15 and 19, below. 2. Authorized Vehicles and Forms of Transport. All vehicles and forms of transport shall be allowed to use the easement area 7 except for those vehicles and forms of transport described below and that are described or referenced in Exhibit "C" attached hereto, or in any authorized amendment or supplement to Exhibit "C." Bicycles, scooters, mopeds and pedestrian activity shall not be allowed to use the easement area. In addition, pursuant to the provisions of Ordinance Nos. 08-58 and 08-59, vehicles in excess of three (3) tons are not permitted on residential portions of Haleki'i Street and to that extent, vehicles operated by the general motoring public that are in excess of three (3) tons shall not be permitted to enter upon and travel through the easement area and thereafter over the ;; current westerly (makai) terminus of Haleki'i Street and through, over and >~ on said Haleki'i Street. 3. Tra~fc Controls, Operations, Litter, Trespass, Fire Protection. Other Measures and Prohibitions, Administration, The Grantee •', will comply with, observe, enforce and cause to be observed all of the ~: provisions of this grant ofnon-exclusive easement, including, but not limited to the provisions of Exhibit "C" attached hereto, governing the use of the I; ~, easement area. Further, because the easement area consists of privately- owned roads that are intended to be dedicated to the County of Hawaii in the future, the Grantee will use its powers and authority described in Section 46- ~ 16, Hawaii Revised Statutes and Section 24-2 of the Hawaii County Code to `'' ensure that the general motoring public uses the easement area in a safe and '',' efficient manner by applying and enforcing applicable provisions of the State and County's traffic safety laws to the use of the easement area. 8 r The Grantor and the Grantee will each designate a single person as their respective representatives for the purpose of administering this grant ofnon-exclusive easement and any provision in Exhibit "C." 4. Term; Renewal. The term of this grant of non-exclusive easement shall begin on the date this instrument is executed by the Grantor and the Grantee to allow the Grantee the opportunity to prepare for the `` general motoring public's use of the easement area and, further, the general , motoring public may begin to use the easement area within forty-five (45) ~~ days of the effective date described in Ordinance Nos. 08-58, -08-59 and 08- 64, as they may be amended, or such other time as may be agreed upon by the parties. The term of this grant ofnon-exclusive easement will terminate one hundred eighty (180) days after opening for public use (called the "trial '} period") provided, however, that the Grantee may elect to renew the term of '. this grant of non-exclusive easement at the end of said one hundred eighty (180) day period, which renewed term and the conditions thereof shall be subject to negotiation between the Grantor and the Grantee. Nothing in this ` paragraph precludes the Grantor and the Grantee from terminating this grant of non-exclusive easement by mutual agreement or the Grantor from withdrawing, suspending or terminating this grant of non-exclusive easement pursuant to Paragraphs 5, 6.d; 15 and 19, below. In addition to any of the foregoing provisions, the Grantee shall have the right to terminate this grant ofnon-exclusive easement upon written notice to the Grantor, subject to the Grantee's continued observance and 9 ~~. 4 performance of the Grantee's obligations to the Grantor which may have accrued during the time of the Grantee's use and occupation of the easement area pursuant to this grant ofnon-exclusive easement. Upon termination, the Grantee shall have a reasonable time to complete the removal of any facility, remediation measures or other i improvements and equipment required or allowed to be placed on the j ~. easement area under this grant of non-exclusive easement and the Grantee '; shall have aright-of--entry for .such purposes without further consent from the Grantor. If the Grantor and the Grantee are unable to reach an agreement as to the duration of the renewed teen and other provisions that will govern the renewed grant of non-exclusive easement, then this grant of non- exclusive will terminate on the one hundred eightieth (180th} day from the effective date of the general motoring public's right to use the easement area as noted above under this grant of non-exclusive easement, or upon the termination date of any previously renewed term, without any act on the part of the Grantor or the Grantee to be performed. 5. Right to Suspend Use of Easement Area. In the event circumstances or conditions arise that pose a threat to the safety, property rights or interests of the Grantor, Hokuli'a lot owners, their respective employees, invitees, guests and contractors, and others who are designated and authorized by the Grantor to use the easement area or that pose a threat to the safety of the general motoring public, the Grantor may temporarily ', withdraw or suspend the use of the easement area, in whole or in part, during , 10 the term of this grant of non-exclusive easement upon giving written notice I~~ to the Grantee; provided, however, that after receiving such written notice G:' from the Grantor, the Grantee shall have the right to cure or otherwise resolve the events, circumstances or conditions giving rise to the Grantor's concern within a period of fifteen (15) days or such other period as the i!. Grantor and the Grantee may agree upon (called the "cure period"). During `' the cure period, the Grantor shall reasonably cooperate with the Grantee to mitigate any such threats so as to allow the general motoring public's use of ` the easement area and the Grantee shall exercise due care to close or to limit public continued use of the easement area during the cure period, giving due consideration to the Grantor, Hokuli'a lot owners, their respective employees, invitees, guests and contractors and persons authorized and . designated by the Grantor. 6. Reserved Rights. The Grantor reserves for itself and for Hokuli'a lot owners, their respective employees, guests, invitees and contractors and for other persons designated and authorized by the Grantor " the full use and enjoyment of the easement area and the right of the Grantor to grant to others such rights and privileges to use the easement area. Without limitation, the Grantor specifically reserves the following: a. Rights of way and easements for access, construction, ~' water, utility, communication, landscaping and other development purposes (including measures necessary to comply with existing laws '' and regulations) and rights to maintain and utilize such rights of way and easements over, under and across the easement area; 1, 11 r b. The right at any time to enter upon the easement area for construction, inspection, repair and maintenance purposes, including, ', but not limited to, the construction, maintenance, repair or replacement of any such rights of way and easements; c. The right to assign in whole or in part the rights reserved ', to the Grantor, subject to the non-exclusive easement granted pursuant to this grant ofnon-exclusive easement; d. The right to suspend or restrict access to and use of the easement area if it is necessary to do so, upon immediate notice to the '" Grantee, for construction, maintenance, repair, health or safety ','~ reasons, or if so required by a court order or by any other act of any federal, state or county body or agency; e. The Grantor's and its contractors, employees, agents, `' invitees and guests' use of the easement area on terms that are different from those set forth in this grant ofnon-exclusive easement; f. Rights and privileges of Hokuli'a lot owners, their guests, invitees and contractors' use of the easement area on terms that are different from those set forth in this grant of non-exclusive easement. g. Rights and privileges of other authorized persons' use of the easement area on terms that are different from those set forth in this grant ofnon-exclusive easement. 12 r ~ ' In their exercise of these reserved rights, the Grantor and other persons having the reserved right to use the easement area shall make all reasonable efforts to avoid interfering with the Grantee's right to allow the general motoring public to use the easement area under the provisions of this ', grant ofnon-exclusive easement. 7. Existi~ Condition off' Easement Area, Acceptance, , Assumption o Risk. The Grantor designed and constructed the Mamalahoa Bypass Highway and Haleki'i Street Extension pursuant to standards ; established and approved by the Grantee, but as of the date of this grant of i . non-exclusive easement, the Grantor has not completed construction of the Mamalahoa Bypass Highway and the Haleki'i Street Extension or the installation of all equipment, appliances, signs, devices and striping necessary for such roadways. Further, in light of the incomplete state of construction, the easement area may be considered to be in whole or in part a construction site. The Grantee has inspected the easement area, accepts the ;, easement area in its current "as is" condition for the proposed trial period and acknowledges that if the easement area is used in the manner described and required by this grant of non-exclusive easement, the easement area can be safely used by the Grantee and the general motoring public for the :! purposes intended by this 'grant non-exclusive easement and without unreasonable risk or danger to the general motoring public or other authorized and designated users. The Grantor makes no representation or warranty with respect to the condition of the easement area, including the 13 r a ' fitness of the easement area for the particular purpose or use intended or contemplated by the Grantee. The Grantee, in agreeing to accept the " easement area in its current "as is' condition,,assumes all risks and dangers regarding all aspects of the easement area and its use by the Grantee and the general motoring public to the extent that such risks do not arise out of and ' are not in any part caused by the Grantor's negligence or other legally .':, wrongful conduct. The Grantor and the Grantee agree that the Grantee's ' acceptance of the easement area for the purpose of this grant of non- 1` exclusive easement is limited to the condition and use of the easement area for the purpose of this grant of non-exclusive easement. By accepting the ' easement area and by signing this grant of non-exclusive easement, the Grantee does not declare, imply or infer that the easement area is in a ;;, condition to be dedicated as. a public roadway or that the Grantor has completed its obligation to complete the easement area to applicable '~' standards for dedication. 8. Arrangements With Communities Outside the Hokuli'a ~, Project. To the extent that the Grantee plans to take or has taken measures that affect traffic within the Kona Scenic Subdivision or other communities located outside of the Hokuli'a project area, the Grantee will ensure that j such measures will not hinder the use of the easement area as contemplated by this grant of non-exclusive easement or otherwise expose the Grantor, ,'~ Hokuli'a lot owners, their respective employees, guests, invitees and contractors or other persons designated and authorized by the Grantor or the " 14 general motoring public using the easement area to unreasonable risks, dangers or hazards. 9. Permitted Improvements and Work. Except as otherwise provided in this grant of non-exclusive easement, the Grantee will not install ' any improvements or cause any work to be done in, on or under the easement area without written notice to the Grantor and without first °, obtaining the Grantor's written consent for any such improvement or work, which consent the Grantor will not unreasonably withhold. 10. Removal of Permitted Improvements. All permitted improvements, equipment, appliances, devices or other property placed in or upon the easement area by the Grantee will be done without cost, expense, , liability or obligation to the Grantor and will remain the property of the "~ Grantee and may be removed or otherwise disposed of by the Grantee at any ; time; provided, that the removal will be accomplished with minimum disturbance to the easement area which will be restored to its original condition, less reasonable wear and tear, or such other condition as the Grantor and the Grantee shall mutually agree upon in writing, and within a reasonable time after removal. 11. Removal o~cLuipment and Materials for Permitted Work. Upon completion of any permitted work performed in or upon the easement area, the Grantee will remove therefrom all equipment and unused or surplus materials, if any, and will leave the easement area in a clean and sanitary condition satisfactory to the Grantor. 15 12. Maintenance. In addition to any other provision of this grant of non-exclusive easement, including Exhibit "C" attached hereto, the Grantee will at all times keep the easement area and the improvements, equipment, appliances, devices and other property thereon in a clean and safe condition and in a safe and proper operating condition and, further, will not make, permit or suffer, any waste, strip, spoil, nuisance, danger, risk, hazard or unlawful, improper, or offensive use of the easement area or allow conditions to arise or to exist on the easement area that may cause the easement area to present dangers, risks or hazards to the safety of persons and their property who are authorized to use the easement area. The Grantor and the Grantee shall work cooperatively to determine a maintenance and inspection schedule to facilitate the execution of this paragraph. 13. Non=Discriminatory Practices. The Grantee covenants that the use and enjoyment of the easement area will not be in support of any policy which discriminates against anyone based' upon race, creed, sex, color, national origin, religion, marital status, familial status, ancestry, physical handicap, disability, age or HIV (human immunodeficiency virus) infection. 14. Compliance with Laws. The Grantee, in the exercise of the rights granted herein, will comply with all of the requirements of the federal, state, and county bodies and agencies that are now in force or that may hereinafter be in force relating to the use of the easement area. 15. Termination for Non-Use. The easement right given under this grant of non-exclusive easement will cease and terminate as to 16 any portion of the easement area, and such portion of the easement area will automatically be forfeited to the Grantor, without any action on the part of the Grantor, in the event the Grantee elects to abandon the easement area for any reason as evidenced by a writing signed by the Grantee and authorized by the Grantee's officers. In the event that the County Council for the County of Hawaii, acting pursuant to Ordinance Nos. 08-58 and 08-59, elects"to "sunset" or otherwise repeal the amendments made by Ordinance No. 08-59 and 08-59 and require the Grantor to barricade the Haleki'i Street ~ Extension and to prevent the use of the Halekii Street Extension by the general motoring public, as originally required by Ordinance Nos. 96-7 and ? 96-8 prior to their amendment by Ordinance No. 08-59 and 08-59, the easement right given under this grant of non-exclusive easement will cease and terminate. 16. Surrender. The Grantee will, upon termination or revocation of this grant of non-exclusive easement, peaceably deliver unto the Grantor possession of the premises, together with all permitted improvements, equipment, appliances, devices and other property existing or constructed or installed thereon or Grantee will, at its election, remove such property and will restore the easement area to its state as of the date of this grant of non-exclusive easement area and in a clean and sanitary condition satisfactory to the Grantor, all at the expense of the Grantee. If the Grantee does not remove the property or restore the premises to the satisfaction of the Grantor, the Grantor may effect such action and the Grantee agrees to pay all reasonable costs and expenses for such action. The Grantor and the Grantee will undertake measures to obtain photographs, film or other records of the easement area and its condition as of the date of this grant of non- 17 exclusive easement for the purpose of defining the easement area's current state of condition. 17. Hazardous Substances; Spills. The Grantee will not cause or permit the escape, disposal or release of any hazardous materials on the easement area or any property owned by the Grantor or Hokuli'a lot owners except as permitted by law and, further, will take steps to ensure that the general motoring public will not cause or permit such escape, disposal or release to occur. The Grantee will not allow the storage or use of such materials in any manner not sanctioned by law or by the highest standards prevailing in the industry for the storage and use of such materials, nor allow to be brought onto the easement area or any property owned by the Grantor or Hokuli'a lot owners any such materials except to use in the ordinary course of the Grantee's business, and then only after written notice is given to the Grantor of the identity of such materials and upon the Grantor's consent which consent may be withheld at the Grantor's sole and absolute discretion. If any lender or governmental agency shall ever require testing to ascertain whether or not there has been any release of hazardous materials by the Grantee, then the Grantee will be responsible for the reasonable costs thereof. In addition, the Grantee will execute affidavits, representations and the like from time to time at the Grantor's request concerning the Grantee's best knowledge and belief regarding the presence of hazardous materials on the easement area or any property owned by the Grantor or Hokuli'a lot owners placed or released by the Grantee. For the purpose of this grant of non-exclusive easement, "hazardous material" shall mean any pollutant, toxic substance, hazardous 18 waste, hazardous material, hazardous substance, or oil as defined in or pursuant to the Resource Conservation and Recovery Act, as amended, the Comprehensive Environmental Response, Compensation and Liability Act, as amended, the Federal Clean Water Act, or any other federal, state or local environmental law, regulation, ordinance,~rule or bylaw, whether existing as of the date hereof, previously enforced, or subsequently enacted. The Grantee agrees to indemnify, defend, and hold the Grantor harmless, from any damages and claims resulting from the release of hazardous materials on the easement area occurring while the Grantee is in possession or elsewhere if caused by the Grantee or persons acting under the Grantee. This provision for indemnity, defense and hold-harmless shall be in addition to and shall supplement the provisions in Paragraphs 20, 21, 23 and 24. In addition, the Grantee will not cause or permit the escape, disposal or release of materials, such as paint, household liquids or other matter that may damage, render unsafe or alter the appearance or condition of the easement area or any property owned by the Grantor or Hokuli'a lot owners, whether such materials are deemed to be or not to be hazardous materials, and, further, will take steps to ensure that the general motoring public shall not cause or permit such escape, disposal or release to occur. The Grantee will, take measures to immediately clean and remove such materials from the easement area or property owned by the Grantor of Hokuli'a lot owners. 19 19. Default, Remedies. In the event the Grantee shall fail to observe or perform any of the terms, conditions, covenants, promises and •, assurances set forth in this grant ofnon-exclusive easement, the Grantor may at once terminate this grant of non-exclusive easement upon written notice to the Grantee without resort to any legal process and without prejudice to any other remedy or right of action on the Grantor's part at law or in equity. 20. Waiver, Indemnity. The Grantee waives any claim or demand that the Grantee may have or might be able to bring against the Grantor for damages or injuries or for any liability, obligation, debt, losses, judgment or expense arising out of the use of the easement area or this grant ofnon-exclusive easement, including attorney fees and court costs and litigation expenses (referred to collectively and singularly as "liabilities" hereafter in this paragraph). The Grantee further agrees that it will not bring any claim, demand, action, suit or proceeding of any nature against the Grantor, its related and affiliated entities, parents, subsidiaries, partnerships, joint ventures, limited liability companies, members, trusts and assigns, of every tier, and their respective officers, directors, partners, agents, employees, volunteers, members, managers, trustees, shareholders, and any successors or assigns or Hokuli'a lot owners , or any of the foregoing, for any such liabilities, including, but not limited to, reasonable attorneys fees and all court costs and litigation expenses that relate to, arise out of, or are in any way connected with the use of the easement area or this grant of non- exclusive easement, whether foreseen or unforeseen, regardless of cause. In the event that any claim, demand, action suit or other proceeding is brought against the Grantee for any such liabilities, the 20 Grantee will not assert any claim, demand, action, suit or other proceeding or take any action intended to make or as a consequence might make the ' Grantor, its related and affiliated entities, parents, subsidiaries, partnerships, joint ventures, limited liability companies, members, trusts and assigns, of every tier, and their respective officers, directors, partners, agents, employees, volunteers, members, managers, trustees, shareholders, and any successors or assigns or Hokuli'a lot owners, or any of the foregoing, liable for any portion of such claim, demand, action, suit or other proceeding and, further, the Grantee will not assert that the Grantor, its related and affiliated entities, parents, subsidiaries, partnerships, joint ventures, limited liability companies, members, trusts and assigns, of every tier, and their respective officers, directors, partners, agents, employees, volunteers, members, managers, trustees, shareholders, and any successors or assigns or Hokuli'a lot owners, or any of the foregoing, is or are a joint tort-feasor within the meaning of Chapter 663, Hawaii Revised Statutes, or at common law, or is or are otherwise subject to contribution for any such claim, demand, action, suit or other proceeding for any liabilities. In addition, the Grantee waives any right it may have at common law, under statute or otherwise to assert that Grantor, its related and affiliated entities, parents, subsidiaries, partnerships, joint ventures, limited , liability companies, members, trusts and assigns, of every tier, and their respective officers, directors, partners, agents, employees, volunteers, members, managers, trustees, shareholders, and any successors or assigns or Hokuli'a lot owners, or any of the foregoing, may be or is a joint tort-feasor or otherwise subject to contribution pursuant to statute or common law or otherwise for any such liabilities. 21 The Grantee will at all times with respect to the easement area use due care for the safety of persons who are authorized to use the easement area and agrees to indemnify, defend, and hold the Grantor, its related and affiliated entities, parents, subsidiaries, partnerships, joint ventures, limited liability companies, members, trusts and assigns, of every tier, and their respective officers, directors, partners, agents, employees, volunteers, members, managers, trustees, shareholders, and any successors or assigns, and Hokuli'a lot owners, or any of the foregoing, harmless from and against any such liabilities due to or arising out of damages or injuries that are related to, arise out of, or are in any way connected with the use of the easement area pursuant to this grant ofnon-exclusive easement as well as for any such liabilities due to or arising out of damages or injuries that are related to, arise out of, or are in any way connected with the Grantee's non- observance or non-performance of any of the terms, conditions, covenants, promises and assurances set forth in this grant of non-exclusive easement or the rules, regulations, ordinances, and laws of the federal, state, municipal or county authorities and agencies applicable to the use, maintenance and control of the easement area. The Grantee's waiver, forbearance, defense, indemnification and hold harmless obligations under this paragraph shall not apply to any liabilities that are caused in whole or in part by any negligent, intentionally wrongful or reckless act or omission of the Grantor, its related and affiliated entities,"parents, subsidiaries, partnerships, joint ventures, limited liability , companies, members, trusts and assigns, of every tier, and their respective off cers, directors, partners, agents, employees, volunteers, members, 22 managers, trustees, shareholders, and any successors or assigns, and Hokuli'a lot owners, or any of the foregoing, as to the party committing said negligent, intentionally wrongful or reckless act or omission. 21. Litigation. In case the Grantor will, without any fault on its part, be made a party to any litigation commenced by or against the Grantee as a result of the Grantee or the general motoring public's use of the easement area or this grant of non-exclusive easement (other than condemnation proceedings), the Grantee will pay all costs, including reasonable attorney's fees and expenses incurred by or imposed on the Grantor; furthermore, the Grantee will pay all costs, including reasonable attorney's fees and expenses, which may be incurred by or paid by the Grantor in enforcing the terms, conditions and covenants of this grant of non-exclusive easement if the Grantor is determined to be the prevailing party in that litigation. 22. Person in Control for Determining Liability. The Grantee acknowledges that recent decisions of the Hawaii Supreme Court have addressed the subject of a landowner and municipality's respective liability for claims arising out of the use of a privately-owned street that is in whole or in part within the control of the municipality and, further, have ruled that the "degree of control determines liability." In this context, the Grantee agrees that for the term of this grant of non-exclusive easement, the Grantee shall be deemed to be in control of the easement area for purposes of liability as to any claim, demand, suit, action, cause of action, proceeding, loss, liability or expense that is related to or is in any way connected with the use of the easement area pursuant to this grant 23 of non-exclusive easement or with the Grantee's non-observance or non- performance of any of the terms, conditions, covenants, promises and assurances set forth in this grant of non-exclusive easement or the rules, regulations, ordinances, and laws of the federal, state, municipal or county authorities and agencies applicable to the use, maintenance and control of the easement area. 23. Insurance. The Grantee will procure and maintain, at its own cost and expense, in full force and effect throughout the term of this easement, comprehensive general liability insurance, or its equivalent form and character of indemnity acceptable to the Grantor, in an amount of at least $ for each occurrence and $ aggregate, with an insurance company or companies licensed to do business in the State of Hawaii. The policy or policies of insurance shall name the Grantor as an additional insured. The insurance shall cover the entire easement area and any claims that may be made for bodily injury or property damages as a result of the general motoring public's use of the easement area or as a result of this grant ofnon-exclusive easement. The Grantee, prior to its entry and use of the easement area or within thirty (30) days after the effective date of this easement, whichever is sooner, will famish the Grantor with a certificate(s) showing the policy(s) to be initially in force, keep the certificate(s) on deposit during the entire easement term, and furnish a like certificate(s) upon each renewal of the policy(s). This insurance shall not be cancelled, limited in scope of , coverage, or nonrenewed until after thirty (30) days' written notice has been given to the Grantor. 24 The Grantor will retain the right at any time to review the risk, coverage, form, and amount of insurance required by this easement. If, in " the opinion of the Grantor, the insurance provisions in this grant of non- exclusive easement do not provide adequate protection for the Grantor, the Grantor may require the Grantee to obtain insurance sufficient in coverage, insured risk, form, and amount to provide adequate protections. The Grantor's requirements shall be reasonable, but shall be designed to assure protection for and against the kind and extent of the risks that exist at the time a change in insurance is required. The Grantor will notify the Grantee in writing of changes in the insurance requirements and the Grantee will deposit copies of acceptable insurance policy(s) or certificate(s) therefor, with the Grantor incorporating the changes within thirty (30) days after receipt of the notice. The procuring of the required policy(s) of insurance shall not be construed to limit the Grantee's liability under this grant of non-exclusive easement nor to release.or relieve the Grantee of the indemnification and waiver provisions and requirements of this grant ofnon-exclusive easement. Notwithstanding any policy(s) of insurance, the Grantee will be obligated for . the full and total amount of any damage, injury or loss caused by the Grantee's acts or omissions in connection with the use of the easement area or this grant ofnon-exclusive easement. It is agreed that any insurance maintained by the Grantor will apply in excess of, and not contribute with, insurance available under the ' Grantee's policy. Further, it is also agreed that the requirement for 25 insurance set forth in this paragraph does not acknowledge or admit that the Grantor is or may be liable for any claims or demands covered by such insurance or because of such insurance. 24. No Encumbrances. The Grantee will not commit or suffer any act or neglect on its part, or any of its officers, employees, contractors or agents, in connection with the use of the easement area whereby the easement area or underlying land or any property owned by the Grantor of Hokuli'a lot owners shall become subject to any attachment, lien, judgment, charge or encumbrance and will indemnify, defend and hold harmless the Grantor from and against all such attachments, liens, ; judgments, charges or encumbrances and all expenses resulting therefrom, ' including attorney fees, and will take immediate steps to discharge and satisfy out of the Grantee's own funds and assets any such attachments, ,, liens, judgments, charges or encumbrances that may be asserted against the ' easement area, it being expressly agreed that the Grantee has no authority express or implied, to create any lien, charge or encumbrance upon the easement area. 25. Condemnation. If the easement area, or any portion of the easement area, described in this grant ofnon-exclusive easement shall be taken by any authority having the power of eminent domain, then and in every such case, the easement granted hereunder shall immediately ' terminate as to the area or interest condemned, and the Grantee will not be entitled to receive, and hereby waives, and relinquishes any claim to, any compensation and damages payable for on accourit of the easement area or any interest taken or condemned. 26 i 26. Notices. Notices required to be given under this grant of non-exclusive easement shall be made in writing or personally delivered to the party to whom notice is to be given or sent to the address of such party as set forth at the beginning of this grant ofnon-exclusive easement. 27. No Conveyance oflnterest in Land Other than Easement, No Third-Party Bene aciary. The- rights given by and contemplated under ,. this grant ofnon-exclusive easement in the easement area are not intended to convey to the Grantee or to the general public any legal or'equitable interest in the easement area or the land underlying the easement area other than an easement and as limited and conditioned by this grant of non-exclusive easement. Further, the Grantor does not intend to create or confer upon persons other than the Grantee any beneficial rights or other privileges so as to give such persons beneficial rights under this grant of non-exclusive easement. It is understood and agreed by the Grantee that the Grantor, by ' executing and delivering this grant of non-exclusive easement, does not grant or otherwise give to the general public any right, privilege, license or other benefit in or use of the easement area and, further, that the general motoring public's use of the easement area under this grant of non-exclusive easement is based upon and arises out of the Grantee's discretion to allow the uses contemplated by this grant of non-exclusive easement. Nothing in this grant of non-exclusive easement or the general motoring public's use of the easement area pursuant to this grant of non-exclusive easement is intended to be, nor shall constitute, an act of implied dedication of the easement area to public use or to the Grantee. 27 28. Public Access Conditions. Nothing in this grant of non-exclusive easement is intended to be, nor shall constitute, a grant, conveyance or other designation for public access on, over or through property owned by the Grantor and that is part of the Hokuli'a project. Public access required under the Grantor's land use entitlements or that may be required by law shall continue, but shall be governed by the Grantor's separate public access measures or by such applicable law and not by this grant ofnon-exclusive easement. 29. No Joint Venture, Association or Partnership. The execution and delivery of this grant of non-exclusive easement shall not be construed, nor is it intended to constitute, a joint venture, association or partnership between the Grantor and the Grantee. Nor shall this grant of non-exclusive easement be construed as creating any relationship between the Grantor and the general public simply because the Grantor has executed and delivered this grant ofnon-exclusive easement to the Grantee. 30. Entire Agreement. This grant of non-exclusive easement and the Exhibits attached hereto contain the entire agreement of the Grantor and the Grantee with respect to the use of the easement area and this grant of non-exclusive easement and shall supersede all other prior representations, understandings and agreements with respect thereto. 31. Amendment. Except as otherwise provided, no amendment or modification of this grant of non-excusive easement, or any exhibit attached hereto, shall be binding unless agreed to in writing and unless the writing is signed by the Grantor and the Grantee. 28 32. Authori The Grantor and the Grantee acknowledge and represent that each of them has the authority to sign this grant of non- exclusive easement. The Grantee further acknowledges and represents that this grant of non-exclusive easement is subject to approval by the County Council of the County of Hawaii. 33. Dispute Resolution. In the event a dispute arises between the Grantor and the Grantee and the dispute cannot be resolved among or between the disputants, then the dispute shall be submitted to mediation, the cost of which shall be shared equally among the disputants. The mediation procedure, the selection of a mediator and other matters relating to mediation shall be agreed upon by the disputants and in the event the disputants cannot reach an agreement therefore, then Dispute Prevention Resolution, Inc. ("DPR") of Honolulu, Hawaii and its panel of mediators and mediation procedures shall govern the mediation. Any portion of a settlement under which the Grantee is obligated to pay a monetary" amount to the Grantor or to any other person shall be subject to the County of Hawaii Corporation Counsel and County Council's approval, as may be required by law, and shall also be subject to the Grantee's appropriation, financial and budgetary procedures and requirements. 34. Notice to Public. The Grantee will be responsible fo inform the general motoring public of the limitations, prohibitions and other provisions governing the use of the easement area, including, but not limited to, providing appropriate signage on Alii Drive, Kamehameha III Highway, ,, Kuakini Highway, Mamalahoa Highway and Haleki'i Street and other 29 locations outside of the easement area as the Grantee may determine to be appropriate for public safety and convenience. If the Grantee wishes to place such signage on the easement area or on the Grantor's property, the Grantee shall first obtain the Grantor's written permission, which permission the Grantor may grant or withhold in its discretion after considering the type of signage that the Grantee proposes, its appearance and content. 35. Provisions Survive Termination. Unless stated otherwise, all of the provisions of this grant of non-exclusive easement shall survive the termination of this grant of non-exclusive easement and shall continue to govern the rights and obligations of the Grantor and the Grantee relating to the use of the easement area and this grant of non-exclusive . easement. 36. Counterparts; Master Copy. This grant of non-exclusive easement may be executed in one or more counterparts and all of the counterparts shall constitute one and the same grant of non-exclusive easement, notwithstanding that all parties are not signatory to the same or original counterpart. The parties may discard duplicate pages of any counterpart and reassemble the signature pages of each counterpart together with the remainder of a counterpart so as to establish one document that in its entirety reflects the terms of this grant ofnon-exclusive agreement. The Grantor and .the Grantee shall subsequently, within a reasonable time, execute a certificate that verifies and confirms that the document attached to said certificate constitutes a true and correct copy of this grant of non-exclusive easement to be known thereafter as the "master 30 copy." The Grantor and the Grantee shall each retain a "master copy" for their respective records. IN WITNESS WHEREOF, the COUNTY OF HAWAII, by its Mayor and Director of the Department of Public Works, and 1250 OCEANSIDE PARTNERS, by its General Partner, have caused this Grant of Non- Exclusive Easement for Limited Public Access Over Privately-Owned Roads to be executed as of the day, month, and year first written above. COUNTY OF HAWAII ("Grantee") 1250 OCEANSIDE PARTNERS, a Hawaii limited partnership ("Grantor") By Its Mayor By Its Director Department of Public Works APPROVED AS TO FORM AND LEGALITY Deputy Corporation Counsel County of Hawaii By RED HILL 1250, Inc., a Washington corporation, Its General Partner By Its 31 Owg He:er 4. s~ ~e' ..4 t '' !Y ,. ay. .. 31 ~ 1 - '. e x Se; ','1'~ R y.3~~e3 i!tii .. ~djH ~ ie'tH~ ui6t;{7- = f}~ l A A' A L A E A =, ~ } 3 ~~~~ P L if ::. C ~~~yccc °it i Fll~pl - K A ~ dc' , !1~ 7 ~ ~* ~ '.~ ~ ~ Is ~ 4 ~ ~, ~~jY ;2~` '~ ~ it ~ ~,~~ a' t 3, Y fl~ w a QX -,..9 i _ i it t f~. .F ~ G H ~ t I I I _. t t i~ a ~ to 4•^ I Y•l ~`,_ ~ ~ ~^)~~1' ~ ~ JY ~ P ~ @ ~ it G ~ 4 ~, ~rr~11 yN p xt+.rj if ~ `e `V~ ~'i ~ is i \ _. I ~ ~4 ° A a tae tE UI` r H f ;'P~~~1~ L. G~ e ° 'J- "_ ° w ' j i ~~~ ~ i 4~u it ® ~ i X : l :. 4 t .` ' g ~~` ~ ~'v ~~• C Y ;.3t6 ~x _D~ i ~ { ~ ~ i : a i 616 c[i ~ ~ ~ ~ r ids v _ i8 e s . 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O 1 5 9O O ;~i tC L II o.~ ~ R Ex~~~rr ~'$'~ EXHIBIT "C" Traffic Controls, Operations, Litter, Trespass, Fire Protection, Other Measures and Prohibitions, Administration (Reference: Paragraphs 2 and 3 Grant ofNon-Exclusive Easement for Limited Public Access Over '~ Private Roadways) '" EXHIBIT "C" The Grantor and the Grantee agree that the following provisions . shall govern the use of the easement area, including, but not limited to, speed limits and other traffic control measures, litter, trespass, fire protection, safety, use of guard stations, assignment of guards, policing by authorized police officers, enforcement of speed limits, traffic control measures and other prohibitions, administration, operations and other matter necessary for the safe and efficient use of the easement area and for the effectuation of the intended purpose of this grant ofnon-exclusive easement to which this Exhibit "C" is attached and made a part of by reference. A. General Principles. 1. The Grantor is accommodating the Grantee's request to provide the general motoring public access to, on and over the easement area for limited vehicular use without compensation. 2. The easement area is currently being used by the Grantor, Hokuli'a lot owners and others authorized by the Grantor as well as for general access and construction purposes and for the benefit of the community. 3. The Grantee's and the general motoring public's use of the easement area pursuant to the grant ofnon-exclusive easement shall not interfere with or otherwise hinder the Grantor, Hokuli'a lot owners, their respective employees, guests, invitees and contractors and other authorized person's use of the easement area and shall not create or impose burdens, liabilities, losses, obligations, risks or dangers on or to the Grantor, Hokuli'a lot owners or their respective property or on or to persons authorized to use the easement area. 4. The Grantor desires and intends to keep the easement area in private ownership until such time that the Grantor completes the Mamalahoa Highway Bypass and the Haleki'i Street Extension in their entirety and formally dedicates (and the Grantee accepts) the same, including the easement area, as a public road. 5. Rezoning Ordinance Nos. 96-7 and 96-8 provide that the northerly portion of the Mamalahoa Highway Bypass to its intersection with the Haleki'i Street Extension will be available for public use and the Development Agreement provides that the Mamalahoa Highway Bypass will be dedicated in phases upon completion. 6. The Grantor, pursuant to Rezoning Ordinance Nos. 96-7 and 96-8, is obligated to complete the Mamalahoa Highway Bypass in a timely manner. 7. The Grantor currently controls access to the Mamalahoa Highway Bypass and to the Haleki'i Street Extension at designated points through the use of guard stations that are manned by the Grantor's employees or contractors. 2 Access to the easement area by the general motoring public must be controlled at the guard stations and by proper officials having the authority to enforce the provisions of the grant ofnon-exclusive easement. 9. Traffic movement on the easement area during the time that the easement area is open to the general motoring public must be controlled and enforced by proper officials having the authority to enforce the provisions of the grant ofnon-exclusive easement. 10. The general motoring public's use of the easement area is a limited and conditional privilege extended through the Grantee, subject to restrictions and limitations, including termination if circumstances arise that pose a threat to public health and safety or to the property and interests of the Grantor and Hokuli'a lot owners. B. Implementing Actions. For the term of the grant ofnon-exclusive easement, the Grantee will observe, comply with and cause to be performed and satisfied all of the provisions set forth. in this Exhibit "C" and any supplements to this Exhibit "C" as authorized below. PART ONE Authorized Vehicles, Hours, Entry, Exit, Guard Stations A. Authorized Users, Vehicles and Forms of Transport. The easement area shall be open to the general motoring public during the days and times specified in the grant ofnon-exclusive easement, unless otherwise agreed to by the Grantor and the Grantee. The "general motoring public" means those persons who hold valid operating licenses to operate a duly licensed vehicle on the public highways of the State and County of Hawaii and who are operating a duly licensed vehicle that is an authorized form of transport at the time of entry onto the easement area. The following vehicles and other forms of transport operated by the general motoring public shall not be allowed on or to use the easement area pursuant to the grant ofnon-exclusive easement: bicycles, mopeds, scooters, pedestrians and vehicles in excess of three (3) tons. B. Hours. The easement area shall be open to the general motoring public on Monday, Tuesday, Wednesday, Thursday and Friday, from the hours of 3:30 p.m. to 6:30 p.m., holidays excluded. C. Entry and Exit Points, Traffic Direction. For the purpose of the grant ofnon-exclusive easement, the general motoring public shall be permitted to enter onto the Mamalahoa Highway Bypass at the Alii Drive guard station, travelling in a south bound 4 direction, and shall be permitted to enter onto the Haleki'i Street Extension in the vicinity of the Mamalahoa Highway Bypass' intersection with the Haleki'i Street Extension, travelling east bound (mauka). The general motoring public shall not be entitled to use the Haleki'i Street Extension in a west bound (makai) direction and shall not be entitled to use the Mamalahoa Highway Bypass in a north bound direction except as may be otherwise allowed by law or other agreements or conditions of the Grantor's permits or entitlements for the Hokul'ia project. D. Existing Guard Stations. The Grantor will keep the existing guard stations on Alii Drive and on Haleki'i Street in their present locations. To accommodate the intended use of the easement area, the Grantee shall, at the Grantee's expense, provide improvements, additions, work and other measures at the two existing guard stations,-including, but not limited to, the following subjects: Lighting. Appropriate lighting to illuminate the Alii Drive and Haleki'i Street guard stations and the entry and exit areas of the easement area. 2. Improvements, Other Control Measures. Improvements, equipment, barriers or other measures to be placed or installed at the Alii Drive and Haleki'i Street guard stations, as well as portions of the roadways, to allow continued west bound (makai) use of the Haleki'i Street Extension by the Grantor, Hokuli'a lot owners and other persons authorized by the ` Grantor, their respective employees, agents, contractors, guests and invitees (including persons seeking public access to the Shoreline Park) as well as to allow north bound use of the Mamalahoa Highway Bypass by the Grantor, Hokuli'a lot owners and other persons authorized by the Grantor, their respective employees, agents, contractors, guests and invitees (including persons seeking public access to the Shoreline Park), but that exclude the general motoring public from travelling over those roadways in those directions when the easement area is open to the general motoring public (the general motoring public's use being limited to south bound travel over the Mamalahoa Highway Bypass and east bound (mauka) travel over the Haleki' i Street Extension from its intersection with the Mamalahoa Highway Bypass.) E. Temporary Third Guard Station. The Grantor will provide, at the Grantor's expense, a third guard station that will be placed in the general vicinity of the Mamalahoa Highway Bypass' intersection with the Haleki'i Street Extension for the purpose of controlling traffic movement going west bound (makai) on the Haleki'i Street Extension at that intersection. The Grantor will provide its own personnel to man the third guard station and will continue to control west bound (makai) travel on and use of the Haleki'i Street Extension, which use shall be limited to the. Grantor, Hokuli'a lot owners, their respective employees, agents, contractors, guests and invitees and other persons designated and authorized by the Grantor.. In addition, the Grantee shall provide a police officer to control traffic at this intersection for the first week that the easement area is open to use by the general motoring public. After the first week, the Grantor and the 6 Grantee shall meet to discuss the need for the continued deployment of a police officer or a County of Hawaii Department of Public Works' employee at this intersection. To the extent consistent with applicable laws and rules, the Grantee will issue to the Grantor any permits, approvals, variances or exemption determinations that may be required for the Grantor's location and use of a temporary third guard station only for purposes and term of the grant ofnon-exclusive easement. PART TWO Traffic Controls, Prohibitions The Grantor constructed the Mamalahoa Highway Bypass and Haleki'i Street Extension in accordance with standards established and approved by the Grantee and, based on such standards, the roadways can be safely travelled if used under certain appropriate limiting conditions. Prior to, after and during the general motoring public's use of the easement area and for the term of the grant ofnon-exclusive easement, the Grantee, in consultation with the Grantor, will regularly inspect the Mamalahoa Highway Bypass and the Haleki'i Street Extension for the purpose of identifying risks and hazardous conditions and for the purpose of determining means by which certain activities can be controlled, such as: 1. Speeding; 2. Unauthorized stopping on shoulders or other areas on, near or adjoining the easement area, except for mechanical breakdowns or emergencies; 7 3. Animal crossings; 4. No entry areas; 5. Littering, spills and graffiti; 6. Fire; 7. Use of firearms; 8. Trespass or damage to nearby property; 9. Other measures and prohibitions necessary to protect public safety and the interests of the Grantor and Hokuli'a lot owners. After the Grantor and the Grantee agree upon the traffic control measures that will govern the use of the easement area for the term of the . grant ofnon-exclusive easement, the Grantee will prepare appropriate drawings and writings describing the location, size, language and other matter relating to such measures, which drawings, when approved by the Grantor, will be Supplement "1"to this Exhibit "C" by reference. The Grantee will be responsible for purchasing, installing, maintaining, repairing, cleaning and removing at the Grantee's expense, any striping, signage, barriers, equipment, devices or measures agreed upon and set forth in the drawings. The Grantee shall also be responsible to obtain any required approvals from the County of Hawaii County Council. 8 PART THREE The Grantor's Signage and Controls The Grantee, in consultation with the Grantor, will regularly inspect and determine whether the Grantor's existing Signage, striping, barriers or other traffic control measures on the easement area should continue to be maintained or should be replaced if damage has occurred to such Signage, striping, barriers or traffic control measures during the three- hourperiod that the easement area is open to the general motoring public. If any of the Grantor's Signage, striping, barriers or other traffic control measures must be replaced due to such damage, the Grantee will replace such items at the Grantee's expense. The Grantor reserves the right to install Signage at the guard stations as well as at other places along the easement area or at other suitable locations that declare the Grantor's private ownership of the easement area, that the easement area is being made available to the general motoring public on a limited and conditional basis, that the grant ofnon-exclusive easement does not constitute a surrender, dedication or opening of the easement area or other portions of the Hokuli'a project to the general public or for public use and such other matter as the Grantor determines to be reasonable and necessary to protect the property and interests of the Grantor and Hokuli'a lot owners. Grantor will comply with all County and State signate laws, as may be applicable. PART FOUR Personnel A. The Grantor. The Grantor will assign its employees or contractors to man the third guard station located at the Mamalahoa Highway Bypass' intersection with the Haleki'i Street Extension. At its discretion, the Grantor may, during the time that the easement area is open to the use of the general motoring public pursuant to the grant ofnon-exclusive easement, assign its employees or contractors to man the Alii Drive and Haleki'i Street guard stations. B. The Grantee. The Grantee will assign a police officer to control the Alii Drive and Haleki'i Street guard stations not less than one hour prior to the opening of the easement area to the general motoring public and not less than one hour after the easement area is closed to the general motoring public. After the first week after the easement area is open to the general motoring public, the Grantor and the Grantee shall meet to assess the deployment of police officers and such other matter relating to traffic control, security and safety; provided, however, that the Grantee shall assign a police officer to each of the two guard stations at all times during the term of this grant ofnon-exclusive easement during the time periods noted above.. The Grantee will also assign other employees, police officers or contractors to patrol the length of the easement area during the time that the easement area is open to the use of the general motoring public for the purpose of enforcing the traffic control measures governing the use of the 10 easement area and to inspect the easement area, as well as to maintain, clean and repair the easement area. PART FIVE Enforcement A. Grantee's General Obligations and Covenants. The Grantee shall, through the assignment of appropriate number of personnel, administer and enforce all provisions governing the use of the easement area during the days and times that the easement area is open to the general motoring public, including the enforcement of all applicable traffic control measures governing the use of the easement area such as speed limits, sfop signs, yield signs, no stopping and no littering prohibitions and other safety measures governing the use of the easement area. B. Avoidance of Incidents Leading to Violence. Based on the Grantor's experience with the public at large who seek to use the Mamalahoa Highway Bypass and the Haleki'i Street Extension, the Grantor and the Grantee anticipate the occurrence of incidents where drivers must be denied use of the easement area because the easement area is not open or is closed (the drivers arrive too early or too late) or because the vehicle is not authorized. For this reason, the Grantee will be responsible to take all reasonable measures necessary to inform the general motoring public that their use of the easement area is limited and conditioned upon his, her, their or its compliance with the provisions of the 11 .. grant ofnon-exclusive easement and all traffic control measures established " pursuant to the grant ofnon-exclusive easement. In addition, the police officers whom the Grantee will assign to the Alii Drive and Haleki'i Street guard stations will be responsible to address any such incidents and to prevent such incidents from leading to violence or threats of violence being made toward the Grantor, its employees or contractors or to others and to prevent damage or other injury being inflicted upon the Grantor's property or to the property of others as a result of such incidents. C. Notice to Public. The Grantee will be responsible for informing the general motoring public through all reasonable and necessary means, including, but not limited to, public service announcements, signage and press releases, of the days and hours that the easement area is open for use by the general motoring public, the direction of permitted travel, traffic control measures and all other limitations or conditions of the grant ofnon-exclusive easement. D. Immediate Inspection of Easement Area. The Grantee will inspect the easement area on a daily basis '; immediately before the easement area is opened to the general motoring .z public and immediately after the easement area is closed to the general motoring public. t2 ,. E. Collection and Removal of Litter, Debris and Dead Animals. The Grantee will collect and remove all litter, dead animals and other debris found on the easement area on a daily basis immediately after the easement area is closed to the general motoring public. F. Repairs. The Grantee will repair any condition found on or damage caused to and found on the easement area, or to any signage, barrier or traffic control device, on a daily basis after the easement after the easement area is closed to the general motoring public, including, but not limited to, damages or injuries caused to grassed shoulder areas along the easement area, signs, barriers, roadway surfaces and adjoining property owned by the Grantor, Hokuli'a lot owners or other persons. The Grantee may make temporary repairs to damaged areas or may barricade and repair damaged areas at a later time if circumstances do not warrant repair on the same day that the damage has occurred; provided, that such repairs shall be completed at a reasonable time thereafter and the activity shall not interfere with the use by the Grantor, Hokuli'a lot owners, their respective employees, invitees, guests and contractors and other persons authorized and designated by the Grantor of the easement area. G. Spills, Graffiti. The Grantee will clean and eliminate any spills found on the easement area and graffiti found on the easement area or on any signs, barriers or traffic control devices located on the easement area before the easement area is again opened to the general motoring public; 13 H. Cleaning and Replacement of Signs. The Grantee will clean or replace any signs found to have.been damaged on the easement area before the easement-area is again opened to the general motoring public; I. Other Maintenance. The Grantee will take all other measures necessary to keep the easement area as well as any signage, barriers and other traffic control , devices on the easement area clean and in a safe condition and, further, will on a daily basis take appropriate action to ensure that any condition that presents a danger or risk to the safe use of the easement area found on the easement area before the easement area is again opened to the general motoring public. PART SIX Reports The Grantee will report regularly to the Grantor the following information concerning the use of the easement area: the approximate number of vehicles that enter onto the easement area for the purpose of the grant ofnon-exclusive easement; 2. the number of, and nature of, violations of the traffic control measures governing the use of the easement area; the number of accidents that occurred on the easement area and the cause of any accident; 14 ,, 4. the number of incidents where operators of vehicles and others were denied entry onto the easement area and the reason for such denials; 5. any matter that the Grantor may request from the Grantee for the purpose of evaluating the effectiveness of the grant of non- exclusive easement, the performance of the Grantee's obligations under the grant ofnon-exclusive easement or any risks, hazards, dangers, conditions or other matter that may affect the Grantor or Hokuli'a lot owners' interests and the use of the easement area under the grant ofnon-exclusive easement; PART SEVEN Consultation At all times during the term of the grant ofnon-exclusive easement, the Grantor and the Grantee will consult with each other on a regular basis to ensure that the use of the easement area conforms to the traffic control measures and in regard to any matter relating to the use of the easement area and the grant ofnon-exclusive easement. Based on such consultation, the Grantor and the Grantee may, upon mutual agreement, modify the provisions of this Exhibit "C" as evidenced by an appropriate writing. PART SEVEN Designated Point of Contact The Grantor and the Grantee will designate a person, including his or her telephone and email contact information, with whom all 15 .5` y A ~~ communication, notices and other matter can by transmitted for the purpose of implementing the grant ofnon-exclusive easement and this Exhibit "C." PART EIGHT Modifications The Grantor and the Grantee may from time to time modify the provisions of this Exhibit "C" or any supplement to this Exhibit "C." Any modification shall be reduced to a writing that is signed and acknowledged by the Grantor. and the Grantee. For purpose of maintaining accurate records, any modification shall follow an agreed-upon protocol that uses a method of tracking any modifications in a serial manner and that is dated, together with the name and position of the authorized signatory. END OF EXHIBIT "C" 16