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HomeMy WebLinkAboutRES 244 Draft 03 1996-1998LJ COUNTY OF HA • ATE OF HAWAII RESOLUTION N0, 244 98 (Draft 3) A RESOLUTION AUTHORIZING THE COUNTY OF HAWAII TO ENTER INTO A DEVELOPMENT AGREEMENT WITH 1250 OCEANSIDE PARTNERS. WHEREAS, the Hawaii State Legislature, under section 46-123, Hawaii Revised Statutes, granted authorization to the County of Hawaii (County) to enact an ordinance authorizing the executive branch of the County to enter into a development agreement with any person having a legal or equitable interest in real'property for the development of such property; and WHEREAS, pursuant to 46-123, Hawaii Revised Statutes, the Hawaii County Council enacted Ordinance No. 93-37 (Chapter 30, Hawaii County Code) establishing the requirements for Development Agreements, which ordinance was passed into law on April 27, 1993; and WHEREAS; pursuant to Section 46-123, Hawaii Revised Statutes, and Chapter 30, Hawaii County Code, the County adopted rules governing Development Agreements on May 16, 1995; and WHEREAS, 1250 Oceanside Partners, a Hawaii limited partnership, dba Oceanside 1250 (Oceanside) is the owner in fee simple and lessee of certain lands situated in North and South Kona, Hawaii County, Hawaii, TMK: (3)7-9-12:03, (3) 7-9-12:04, (3)7-9-12:11 and (3)8-1-04:03 (por) (" Property") and more particularly described in Exhibit "A", as modified, of the Development Agreement (Oceanside Development Agreement), which is attached hereto and incorporated herein; and WHEREAS, Oceanside or its related entity, affiliate or subsidiary, plans to develop the Property and has submitted a development agreement and application to the Office of the Mayor; and WHEREAS, Oceanside's development will provide many public benefits to the County through the zoning, Special Management Area conditions of approval, and the imposition of on - and off-site development requirements; and WHEREAS, pursuant to Section 30-5(d), Hawaii County Code, the Mayor, through the Planning Director, has submitted a final draft of the Oceanside Development Agreement to the County Council for its action; and WHEREAS, pursuant to Section 304(b), Hawaii County Code, the Mayor may enter into development agreements on behalf of the County; and WE ORIGINAL OF TH"e DOCUMENT RE^ORDED AS FOLLOWSs STAT? OF HAWAII B?12EA11 CONVEYANCES Development Agreement Dt� :•:c:.T �._._ �- os Between County of Hawaii and 1250 Oceanside Partners. Return to: Benjamin A. Kudo Dwyer Imanaka Schraff Kudo Meyer & Fujimoto 900 Fort St. Mall Suite 1800 Honolulu, HI 96813 Modified April 1, 1998 1250 Oceanside Partners 74-5620 A Palani Road Suite 200 Kailua-Kona, Hawaii 96740 • R-915 � rJ� L Development Agreement Between County of Hawaii and 1250 Oceanside s Benjamin A. Kudo Dwyer Imanaka Schraff Kudo Meyer & Fujim 900 Fort St. Mall Suite 1800 Honolulu, HI 96813 Modified April 1, 1998 1250 Oceanside Partners 74-5620 A Palani Road Suite 200 Kailua-Kona, Hawaii 96740 STATE OF HAWAII BUREAU OF CONVEYANCES RECORDED APR 30, 1998 08:02 AM Doc No(s) 98-060529 /s/CARL T. WATANABE ACTING REGISTRAR OF CONVEYANCES Development Agreement Table of Contents Recitals 1 Agreement 24 Definitions 4 Headings 25 Effective Date 9 Administrative Act 25 Affected Land 10 Binding Effect 25 Permitted Uses 10 Entities Obligated 25 Density of Use 10 Partial Release 25 Maximum Height 10 Compliance Certificate 25 Maximum Size 10 Satisfaction 25 Benefits 10 Final Release 25 Acquisition 10 Administration of Agreement 26 Condemnation 11 Recordation 26 Donation 12 Counterparts 26 Bypass Construction, 12 Facsimile Documents 26 Dedication of Bypass 13 Notices 26 Reimbursements 14 Public Dedication 26 Roadway Stub -outs 16 Public Access Plan 17 Coastline Park 17 Guest Houses 19 General Development 19 Subsequent Changes 19 Necessary Approvals 19 Conformance 20 Annual Review 20 Material Breach 20 Time Extension 21 Amendment 22 Discretion to Encumber 22 Obligation to Modify 22 Written Notice 22 Cooperation 22 Assignment 23 Enforcement 23 Waiver 23 Gender 23 Parties 23 Partnership 24 Applicable Law 24 Force Majeure 24 Good Faith 24 Computation of Periods 24 Severability 24 LAND COURT SYSTEM REGULAR SYSTEM AFTER RECORDATION, RETURN BY MAIL (X) PICKUP( ) To: BENJAMIN A. KUDO Dwyer Imanaka Schraff Kudo Meyer & Fujimoto 900 Fort Street Mall Suite 1800 , Honolulu, HI 96813 TMK Nos: (3) 7-9-12:03 (3) 7-9-12:04 (3) 7-9-12:11 (3) 8-1-04: 03 (portion) DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("AGREEMENT"), made this 20 4h day of A r� 1998, by and between the COUNTY OF HAWAII, a municipal corporation of the State of Hawaii, whose principal place of business and mailing address is 25 Aupuni Street, Hilo, Hawaii, acting through its mayor ("COUNTY"), and 1250 OCEANSIDE PARTNERS, a Hawaii limited partnership, dba OCEANSIDE 1250, whose principal place of business and mailing address is 74-5620A Palani Road, Suite 200, Kailua-Kona, Hawaii 96740 ("OCEANSIDE"). RECITALS: A. These Recitals refer to and utilize certain capitalized terms which are defined in Paragraph (2), herein. The parties intend to refer to those definitions in conjunction with the use thereof in these Recitals. B. The Hawaii State Legislature, under Development Agreement Statute section 46-123, granted authorization to the COUNTY to enact an ordinance authorizing the executive branch of the • B. The Hawaii State Legislature, under Development Agreement Statute section 46-123, granted authorization to the COUNTY to enact an ordinance authorizing the executive branch of the COUNTY to enter into a development agreement with any person having a legal or equitable interest in real property, for the development of such property; C. The County Council enacted Ordinance.No. 93-37 pursuant to Development Agreement Statute section 46-123, which ordinance was passed into law on April 27, 1993. D. Pursuant to the Development Agreement Statute and the Development Agreement Code, the COUNTY adopted rules governing Development Agreements on May 16, 1995. E. The Development Agreement Code and the Development Agreement rules establish the procedures and requirements for the consideration of development agreements upon application by or on behalf of persons having a legal or equitable interest in property. F. OCEANSIDE is the owner in fee simple of a portion of the Property, and Lessee of the remainder of the Property. A map describing that portion of the Property owned by OCEANSIDE in fee simple and that portion that is leasedis attached hereto and identified as Exhibit "A". G. OCEANSIDE or its related entity, affiliate or subsidiary plans to develop the Project on the Property. H. . The Project will require a major investment by OCEANSIDE, for example, in public facilities and on- and off-site improvements, to make the Project feasible. I. The Project was reviewed and planned according to the Land Use Regulations. J. OCEANSIDE has applied for and the COUNTY has granted a number of Approvals for the Project. K. As part of OCEANSIDE's applications for Approvals from the COUNTY: 1. The COUNTY has examined the Project's impacts on vehicular traffic conditions, and has determined that construction of the Bypass Highway will not only offset traffic impacts caused by the Project, it will also provide a public purpose by improving existing traffic conditions in the region. 2. The COUNTY has determined that the construction and development of a Coastline Park will be an asset to the COUNTY and the public by providing coastal recreational opportunities, preserving open space and archaeological sites within the Project, as well as meeting the Project's park requirements pursuant to Ordinance No. 96-7, Ordinance No. 96-8 and Special Management Area ("SMA") Permit No. 345. L. The COUNTY has concluded that development of the Project will provide many public benefits to the COUNTY through the zoning, the SMA conditions of approval, and the imposition of on - 2 0 1 0 financing and/or installation and construction of infrastructure and the creation of job opportunities in and through the construction, development and use of the Project. OCEANSIDE shall not be obligated to adhere to and perform the terms and conditions of this Development Agreement ("Agreement") until it has commenced construction of the Project and provided that any zoning approvals"and permits that OCEANSIDE has received have not been challenged and overturned by or that such challenges are not pending resolution before a court of law or a comparable federal, state or county administrative body. For purposes of this paragraph, "commenced construction" shall mean that OCEANSIDE has been awarded final subdivision approval and has received all necessary construction permits for the Project. M. Pursuant to Sec. 46-121, HRS, Hawaii County Code Chapter 30, and Hawaii County's Rule 1, relating to Development Agreements, the COUNTY and OCEANSIDE have entered into this Agreement. This Agreement will: (i) provide for the parameters within which the obligations of OCEANSIDE for public and other improvements will be met; (ii) provide assurances to OCEANSIDE that the project will not be restricted or prohibited by the subsequent enactment or adoption of more restrictive Land Use Regulations, including but not limited to changes in zoning classifications or revocation of OCEANSIDE's Approvals, except when, with the agreement of OCEANSIDE, it becomes necessary to preserve the public health, safety and welfare; and (iii) provide appropriate assurances to OCEANSIDE that it may complete the development and construction of the Project in accordance with all Land Use Regulations and Approvals applicable to the Project on the date of this Agreement, subject to OCEANSIDE's adherence to and performance of all material terms and conditions of this Agreement. N. Use of this Agreement will reduce or eliminate the uncertainty in the Project planning and development approval process, which in turn, would encourage the efficient utilization of resources and minimize the economic cost to the public; allow for the orderly planning of public facilities and services; and otherwise achieve the purposes and objectives for which the Development Agreement Statute and the Development Agreement Code were enacted. This Agreement clarifies the Land Use Regulations and Approvals, which in turn provide for the overall design, construction and development of the Project and all on-site and off-site improvements and appurtenances associated therewith, in the, manner specified in this Agreement, including, without limitation, the design, construction and development of projects to provide benefits to the region and the COUNTY such as the Bypass Highway and the Coastline Park as set forth herein. O. OCEANSIDE submitted an Application to the Office of the Mayor on 1998 pursuant to Development Agreement Code section 5. K P. On rv-\ 4 rc. I'' I $ � °`^ d 3 �h , 1998, pursuant to Development Agreement Code section 5(a) and Development Agreement Statute section 46-128, the County Council held a Public Hearing on the draft of this Agreement. Q. On A P r- ( I s+ , 1998, pursuant to Development Agreement Code sections 5(d) and 5(e) and Development Agreement Statute section 46-129, after review and comment by appropriate governmental agencies of the draft of this Agreement, and consideration of all evidence presented and heard at the Public Hearing pursuant to the Development Agreement Code, the County Council found and determined that this Agreement complies and is in accordance with the County General Plan, as amended, and any applicable community development plans adopted by the County Council as of the date of the Enacting Resolution. In connection with said findings, the County Council passed the Enacting Resolution approving this Agreement for execution by the Mayor. Now, THEREFORE, pursuant to the authority contained in the Development Agreement Statute, the Development Agreement Code, and the Development Agreement Rules, and in consideration of the mutual covenants and agreements set forth herein, the COUNTY and OCEANSIDE mutually agree as follows: 1. RECITALS. The recitals hereinabove are incorporated herein by this reference and made a part of this Agreement as though set forth in full herein. 2. DEFINITIONS. Whenever used in this Agreement, the terms defined below shall have the following meaning: a. AGREEMENT. "Agreement" shall mean this Development Agreement entered into by the COUNTY and OCEANSIDE, approved by the County Council through the Enacting Resolution, and executed by the Mayor on behalf of COUNTY. b. APPLICATION. "Application" shall mean the application for this Agreement submitted by OCEANSIDE to the Planning Department. C. APPRAISER. "Appraiser" shall mean any unbiased appraiser, licensed and certified in the State of Hawaii and appointed as provided herein. d. APPROVALS. "Approvals" shall mean any and all permits or approvals which have been or will be received by OCEANSIDE for the Project from the COUNTY, the State, or any other governmental or quasi -governmental agency pursuant to any Land Use Regulations as of the date of this Agreement, including, without limitation (1) Change of Zone Approval (REZ 93-5), accepted by the County Council on June 15, 1994 as Bill 182, Draft 6 and signed into law by the Mayor on June 28, 1994 as Ordinance No. 94-73, attached hereto as Exhibit "S"; and amended and superseded by Bill 181, Draft 6 accepted by 4 • • the County Council on January 3, 1996, and signed into law by the Mayor on January 15, 1996 as Ordinance No. 96-8 attached hereto as Exhibit "B" and incorporated herein by this reference. (2) Change of Zone Approval (REZ 95-12) accepted by the County Council on January 3, 1996 as Bill 158, Draft 5, and signed into law by the Mayor on January 15, 1996 as Ordinance No. 96-7 attached hereto as Exhibit "C" and incorporated herein by this reference. (3) Special Management Area Use Permit Approval (SMA 93-1) granted by the Planning Commission on November 5, 1993 (SMA Permit No. 345) attached hereto as Exhibit "D" and incorporated herein by this reference. (4) Use Permit Approval (USE 93-2) granted by the Planning Commission on November 5, 1993 (Use Permit No. 115) attached hereto as Exhibit "E" and incorporated herein by this reference. (5) Special Management Area Use Permit Approval (SMA 95-3) granted by the Planning Commission on September 28, 1995 (SMA Permit No. 356) attached hereto as Exhibit "F" and incorporated herein by this reference. (6) Change of Zone.Approval passed by the County Council on March 7, 1997 and signed into law by the Mayor on March 13, 1997 as Ordinance 97-36 attached hereto as Exhibit "G" incorporated herein by this reference. e. BOND. "Bond" shall mean a performance bond, cash bond, surety company bond, personal surety bond, or other financial assurance obtained or caused to be obtained by OCEANSIDE. Such bond shall be good for no more than five (5) years from the date the bond is issued, unless otherwise extended by the mutual agreement of the Director of the COUNTY Department of Public Works and OCEANSIDE in writing. f. BYPASS HIGHWAY. "Bypass Highway" shall mean that bypass highway between the approximate vicinity of 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 and to alleviate traffic congestion on the Mamalahoa Highway that has existed for many years. This Bypass Highway is also referred to as the "Mamalahoa Highway Bypass" under Ordinance Nos. 96-7, 96-8 and 97-36 attached hereto as Exhibits "C", "B" and "G", respectively. Further detail and description of the Bypass Highway is attached hereto as Exhibit "H" and incorporated herein by this reference. g. COASTLINE PARK. "Coastline Park" shall mean that 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 this Agreement. h. COUNTY. "COUNTY" shall mean the County of Hawaii, municipal corporation, and where applicable, the appropriate departments and agencies but does not include the County Council. i. COUNTY COUNCIL.. "County Council' shall mean the County of Hawaii County Council. j. DENSITY. "Density" shall have the meaning given such term in the Zoning Code. k. DEVELOPER. "Developer" shall mean a person, corporation, organization, partnership, association, or other legal entity constructing, erecting, enlarging, altering, or engaging in any development activity. 1. DEVELOPMENT AGREEMENT CODE. "Development Agreement Code" shall mean Ordinance No. 93-37, which ordinance was passed into law on April 27, 1993 (now HCC chapter 30). in. DEVELOPMENT AGREEMENT RULES. "Development Agreement Rules" shall mean County of Hawaii Office of the Mayor Rule 1 regarding Development Agreements, approved by the Mayor on May 16, 1995 and filed in the Office of the County Clerk on May 18, 1995. n. DEVELOPMENT AGREEMENT STATUTE. "Development Agreement Statute" shall mean HRS sections 46-121 through 46-132. o. DIRECTOR. "Director" shall mean the Director of the Planning Department of the County of Hawaii. P. ENACTING RESOLUTION. "Enacting Resolution" shall mean Resolution No. 24/x/ q9 C Dv -a-(4 3� approving this Agreement, adopted by the County Council on Apr-; I S+ , 1998, a copy of which is attached hereto as Exhibit "I" and incorporated herein by this reference. q. ExACTION. "Exaction" shall mean any and all exactions; fair share contributions, impact or in -lieu fees or payments; dedication or reservation requirements; obligations for on- or off-site improvements or construction requirements for public facilities or infrastructure; or services called for in connection with the development or construction of the Project pursuant to the Land Use Regulations and Approvals. r. GOVERNMENTAL ENTITY OR AGENCY. "Governmental entity or agency" shall mean and include, without limitation, the legislative, administrative and executive branches of the local, state and federal governments. S. HCC. "HCC" shall mean.Hawaii County Code, as amended. 6 C7 t. HRS. "HRS" shall mean Hawaii Revised Statutes, as amended. U. IMPACT FEE ORDINANCE. "Impact Fee Ordinance" shall mean a Unified Impact Fees Ordinance or similar ordinance setting forth criteria for the imposition of the exactions or the assessment of impact fees. V. LAND USE REGULATIONS. "Land Use Regulations" shall mean any and all State and County laws, ordinances, resolutions, rules and policies governing the permitted uses of the Property, including, without limitation, uses, density, design, height, size and building specifications of proposed buildings; construction standards and specifications for roads and utilities, roadway improvements; affordable housing; community benefit assessments; water utilization and all exaction requirements applicable to the development of the Property; made applicable and in force as of the date of this Agreement. W. LAND OWNER. "Land Owner" shall mean the equitable or legal holder of interest in real property or the lessee holding under a recorded lease. X. LAWS. "Laws" shall mean the laws of the State, the Constitution of the United States, the Constitution of the State, any federal, state or local codes, statutes, or executive mandates in any court decision, ordinances, or charter provisions or administrative rules and regulations of any applicable governmental entity or agency. Y. LENDER. "Lender" shall mean any financial institution or entity providing funds for the Project, including but not limited to banks, savings and loans, investors and partners. Z. MAYOR. "Mayor" shall mean the Mayor of the COUNTY. aa. OFFICE OF THE MAYOR. "Office of the Mayor" shall mean the Mayor of the COUNTY and the managing director. ab. OCEANSIDE. "OCEANSIDE shall mean 1250 OCEANSIDE PARTNERS, a Hawaii limited partnership, dba OCEANSIDE 1250, whose principal place of business and mailing address is 74-5620A Palani Road, Suite 200, Kailua-Kona, Hawaii 96740, its successors and assigns. ac. PERSON. "Person" shall mean any individual, group, partnership, firm, association, corporation, trust, governmental official, administrative body, tribunal or any form of business or legal entity. ad. PLANNING COMMISSION. "Planning Commission" shall mean the Planning Commission of the COUNTY. ae. PLANNING DEPARTMENT. "Planning Department" shall mean the Planning Department of the COUNTY. h af. PROJECT. "Project" shall mean that agricultural lot community and its various components, also including but not limited to the lodge, golf course, golf clubhouse, and the coastline park, and more fully described and shown in Exhibit "J" attached hereto and incorporated herein by reference. Project shall not include the Bypass Highway. ag. PROPERTY. "Property" shall mean any and all conservation lands and areas which are the lands under the Change of Zone Approvals: (1) accepted by the County Council on June 15, 1994 as Bill 182, Draft 6, signed into law by the Mayor on June 28, 1994 as Ordinance No. 94-73 attached hereto as Exhibit "S", and amended and superseded by Bill 181, Draft 6, accepted by the County Council on January 3, 1996, and signed into law by the Mayor on January 15, 1996 as Ordinance No. 96-8 attached hereto as Exhibit "B'; and (2) accepted by the County Council on January 3, 1996 as Bill 158, Draft 5, and signed into law by the Mayor on January 15, 1996 as Ordinance No. 96-7 attached hereto as Exhibit "C"; that is, those lands which include the 711.2 acres of land (more or less) located on and in the Island and County of Hawaii, identified as Tax Map Key No. 7-9-12: 03, and the 580.63 acres of land (more or less) located on and in the Island and County of Hawaii and identified as Tax Map Key No. 8-1-04: 03 (portion), both of which OCEANSIDE owns in fee simple; and 260.8 acres of land (more or less) located on and in the Island and County of Hawaii, identified as Tax Map Key Nos. 7-9-12: 04 and 7-9-12: 11, and more fully described and shown in Exhibit "K" attached hereto and incorporated herein by this reference, which OCEANSIDE leases from Ackerman Ranch under the development lease dated July 28, 1989, a short form of which is attached hereto as Exhibit "L", and incorporated herein by this reference. ah. PUBLIC ACCESS PLAN. "Public Access Plan", also known as the "Public Shoreline Access Plan", shall mean that plan, developed in consultation with community groups and submitted to and to be approved by the Director,. as required by the COUNTY pursuant to Condition 8 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 this Agreement. ai. PUBLIC HEARING. "Public Hearing" shall mean the public hearing held for purposes of receiving public comments regarding the draft of this Agreement as required pursuant to Rule 1-6(d) of the Development Agreement Rules. aj. RIGHT-OF-WAY. "Right -of -Way" shall mean the route required for construction of the Bypass Highway. ak. SEGMENT(S). "Segment(s)" shall mean that portion of Right(s)-of-Way falling within a parcel or parcels of land owned by Seller(s) 8 al. SMALL -LOT SUBDIVISION. "Small -lot Subdivision" shall mean the subdivision by OCEANSIDE of the Property into lots less than twenty (20) acres in size. (3), herein. am. STATE. "State" shall mean the State of Hawaii. an. TERM. "Term" shall mean the term of this Agreement as determined in Paragraph ao. UNIT OF CREDIT. "Unit of Credit" shall mean the present value of past or future payments or contributions, including, but not limited to the dedication of land or construction of roadway improvements toward the cost of existing or future public facility capital improvements being issued in lieu of payment for Segment(s) of the Right -of -Way. One (1) Unit of Credit shall be issued for each $3,101.68 value of land contributed toward the Bypass Highway. The value of the unit of credit shall be equivalent to the amount of roadway fair share contribution or road impact fee required to be paid for each dwelling or lodge unit at the time of redemption. The recipient of a Unit of Credit may redeem the Unit of Credit toward any roadway fair share contribution or toward any roadway impact fee should the COUNTY adopt such an impact fee ordinance. ap. ZONING CODE. "Zoning Code" shall mean HCC chapter 25 as it exists as of the date of this Agreement. aq. OTHER DEFINITIONS. Unless otherwise provided herein, other words and terms shall have the meaning set forth in the Zoning Code. To the extent that the definitions in the Zoning Code conflict with the definitions contained in this Agreement, the definitions in this Agreement shall be controlling. 3. EFFECTIVE DATE; TERM. The Term of this Agreemeng t shall commence on the effective A ri s date of the Enacting Resolution and shall terminate on [MONTH. DAY. YEARI, 130 years from date of Enacting Resolution] unless sooner terminated: a. By agreement of the parties to this Agreement that the parties have satisfied all of the terms and conditions of this Agreement, as further evidenced by a resolution of the County Council pursuant to Paragraph (50), herein; provided that, OCEANSIDE has been reimbursed for the construction costs it incurred for the Bypass Highway pursuant to. Paragraph (15); or b. As a result of a material breach of OCEANSIDE pursuant to Paragraph (25), herein; C. By cancellation of this Agreement pursuant to Paragraph (27), herein; or unless subsequently extended by mutual agreement of the COUNTY and OCEANSIDE; or d. By reimbursement of construction costs for the Bypass Highway paid to OCEANSIDE pursuant to Paragraph (15), herein; provided, however, that the parties to this Agreement have 9 agreed that both parties have satisfied all of the terms and conditions of this Agreement as further evidenced by a resolution of the County Council pursuant to Paragraph (48), herein. 4. AFFECTED LAND. The Property that is the land subject to this Agreement and the Right -of -Way for the Bypass Highway. 5. PERMITTED USES OF THE PROPERTY. Permitted uses of the Property shall be all uses permitted under the Land Use Regulations and Approvals, including, without limitation, the permitted uses in Chapter 205, HRS, the Zoning Code section .25-5-72, and all supplemental uses allowed under Zoning Code sections 25-4-1 through 25-4-14. 6. DENSITY OF USE. With the exception of that use described under Zoning Code section 25-4-9, one (1) dwelling unit per building site is permitted on the Property pursuant to Zoning Code section 25-5-72(a)(9). 7. MAXIMUM HEIGHT OF PROPOSED BUILDINGS. The height of the buildings proposed for the Property shall be limited to the maximum height restrictions contained in the Zoning Code. 8. MAXIMUM SIZE OF PROPOSED BUILDINGS. The size of buildings proposed for the Property shall be limited to the maximum size restrictions, if any, contained in the Zoning Code. 9. BENEFITS. The COUNTY acknowledges that OCEANSIDE is providing the benefits to the County and/or the Community. 10. ACQUISITION AND DEDICATION OF LAND FOR BYPASS HIGHWAY. a. The Bypass Highway has been determined by the COUNTY as providing a regional public purpose and will therefore benefit the COUNTY. OCEANSIDE shall be deemed to have satisfied the requirements of Condition M(2) of Ordinance 96-7 and Condition L(2) of Ordinance 96-8, if and when it has: (i) acquired all Segments of Right-of-way, or (ii) acquired one or more Segment(s) of Right -of -Way and the remaining Segments have been requested by OCEANSIDE for the COUNTY to condemn. b. OCEANSIDE shall attempt to negotiate a purchase price with any and all Persons. Should OCEANSIDE and any Person be unable to negotiate a mutually agreeable purchase price, then OCEANSIDE shall provide to the Person a list containing no less than three (3) and no more than five (5) qualified Appraisers to appraise the value of the Person's Segment(s) of the Right -of -Way. From the list of Appraisers, the Person shall select one (1) Appraiser to assess the value of the Segment(s). OCEANSIDE may offer to purchase the fee simple interest in the Segment(s) from the Person for a price at or near the appraisal value as determined by the Appraiser. Should OCEANSIDE and the Person be unable to select an Appraiser or if the Person and OCEANSIDE cannot decide on a price recommended by mutually selected Appraiser, then upon written request to the Mayor, the COUNTY shall be required to use its condemnation powers to acquire the Segment(s) from the Person pursuant to Paragraph (11). 10 C. Notwithstanding Paragraph (10.b), if the Person fails to participate in negotiations with OCEANSIDE for the purchase of Segment(s) of the Right -of -Way from the Person despite OCEANSIDE's good faith attempts to negotiate, then OCEANSIDE may, in its sole discretion, submit a letter to the Mayor to have the COUNTY utilize its condemnation powers. Upon receipt of the written request, the COUNTY shall be required to use its condemnation powers to acquire the Segment(s) from the Person pursuant to Paragraph (11). 11. CONDEMNATION OF LAND FOR BYPASS HIGHWAY. Should the Person fail to participate in negotiations with OCEANSIDE over the purchase of Segment(s) of the Right -of -Way from the Person, or should OCEANSIDE and the Person be unable to agree, during their negotiations, to the purchase of the Segment(s) because of their failure to agree upon an Appraiser or on the purchase price of the Segment(s) or on the terms of the purchase, the condemnation powers of the COUNTY shall be required for the acquisition of the Segment(s). a. Upon OCEANSIDE's tender of a requirement of condemnation by letter to the COUNTY, the COUNTY shall within thirty (30) days begin to immediately and expeditiously exercise the same pursuant to HRS Chapter 101. OCEANSIDE's tender of such requirement of condemnation to the COUNTY shall constitute a "formal initiation of condemnation action" as the term is used in Condition L(2) of Ordinance 96-8 and Condition M(2) of Ordinance 96-7 and shall relieve OCEANSIDE of all further liability or obligation to purchase Segment(s) of the Right -of -Way directly from such Person. b. The COUNTY shall submit to OCEANSIDE a written request for payment of any and all reasonable costs and expenses incurred by the COUNTY for the acquisition of the condemned land in conjunction with the COUNTY'S exercise of its condemnation powers when OCEANSIDE has determined in its sole and absolute discretion that there is a need for possession or in the event that a Court orders payment for the acquired land. Within forty-five (45) days of written notice from the COUNTY, OCEANSIDE shall reimburse the COUNTY for any and all reasonable costs and expenses incurred by the COUNTY for the acquisition of the condemned land in conjunction with the COUNTY's exercise of its condemnation powers. OCEANSIDE shall not be responsible to reimburse the COUNTY for any and all costs relating to the salary of County personnel and administration and overhead, including but not limited to independent contractors and legal counsel, and any interest payments incurred by COUNTY as a result of COUNTY's failure to pay compensation to the Person within thirty (30) days of final judgment in the condemnation action. The written notice described herein from the COUNTY to OCEANSIDE shall contain a detailed verifiable accounting of any and all such costs and expenses. C. Should a dispute arise over the amount of monies owed by OCEANSIDE to the COUNTY, then both parties agree to first pursue settlement of the dispute by arbitration pursuant to HRS 11 Chapter 658. OCEANSIDE shall submit to the COUNTY a list of arbitrators to hear the dispute. The COUNTY hasten (10) calendar days to select one (1) arbitrator from OCEANSIDE's list. If the COUNTY fails to select an arbitrator, then OCEANSIDE may select an arbitrator to hear the dispute. 12. DONATION OF RIGHT-OF-WAY. Notwithstanding anything herein to the contrary, should a Person donate the Segment(s) of the Right -of -Way to OCEANSIDE for no consideration, the COUNTY shall: a. Grant the Person who contributes their land towards the. Bypass Highway units of credit which may be used by the Person to off -set future roadway fair share assessment or impact fee requirements. Each unit of credit shall off -set the roadway fair share assessment or impact fee requirement for one (1) dwelling or lodge unit. The amount of credits shall be the total value of the Segment(s) for Right - of -Way divided by the per lot fair share assessment or impact fee requirement to mitigate road impacts for each $3,101.68 value of land contributed. The total value of the Segment(s) for Right -of -Way shall be based on the appraised value of the Segment(s) at the time the Person dedicates and/or donates the Segment(s) to OCEANSIDE as determined by the Appraiser selected using the procedures outlined in subparagraph (10.b). b. The COUNTY shall grant a density credit to Persons whose lands are donated for the Segment(s) of the Right -of -Way. The density credit is equal to the area of land that is utilized. The density credit shall be added to the Person's remaining property at the time the Person obtains land use approvals from the COUNTY. The density credit allows the Person to develop the total number of units that would be permitted under the applicable zoning at the time the Person obtains land use approvals as if the Person had not contributed land for the Right -of -Way C. The COUNTY shall impose no additional fair share assessments or any impact fee ordinance requirements relating to Regional highway Impacts on Persons whose lands have been donated to the County or sold for the Right -of -Way and who develop their lands in conformance with existing zoning. 13. CONSTRUCTION OF THE BYPASS HIGHWAY. The Bypass Highway shall consist of two (2) lanes with sufficient Right -of -Way for a total of four (4) lanes. The Bypass Highway shall be constructed to standards set forth by the Department of Public Works with such modifications as may be deemed necessary by the Department of Public Works; provided, however, that the expansion of the Bypass Highway from two (2) to four (4) lanes shall not be the responsibility of OCEANSIDE. a. OCEANSIDE shall obtain final approval from the County Department of Public Works for any and all necessary construction plans for the Bypass Highway. OCEANSIDE shall construct the Bypass Highway to the standards set forth in Exhibit "M" by the Department of Public Works for Alii Highway with such modifications as may be deemed necessary by the County Department of Public Works and by OCEANSIDE. As required by the chief engineer of the County Department of Public Works, 12 OCEANSIDE shall provide a landscape buffer along highway sections where the highway is within five hundred (500) feet of dwellings existing as of January 1, 1998. b. Prior to the issuance of the first final Small -lot Subdivision approval for any portion of the Property, OCEANSIDE shall: (1) Post a bond in favor of the COUNTY to assure that the infrastructure improvements for the Bypass Highway and for the channelization and signalization of the Mamalahoa Highway-Haleki'i Street intersection will be constructed; (2) Determine the final Right -of -Way for the alignment of the entire Bypass Highway, including the intersection areas. OCEANSIDE shall provide the Director with a metes and bounds description of each Segment of the Right -of -Way involved and evidence of ownership or control as deemed necessary by the Director. In lieu of OCEANSIDE obtaining or acquiring ownership or control of any segment of the Bypass Highway, the requirement shall be deemed fulfilled upon the COUNTY's formal initiation of condemnation action(s) pursuant to Paragraph (11) for such Segments. The COUNTY shall issue a letter attached as Exhibit "N" that acknowledges OCEANSIDE's satisfaction of the requirement to obtain or acquire ownership or control of the Right -of -Way for the entire length of the Bypass Highway, including those portions that the County has initiated condemnation proceedings and/or has ownership or control over, which removes the requirement from OCEANSIDE. (3) Provide a bond for relevant phases of the extension of Haleki'i Street, through the subject property as generally reflected in Exhibit "O", which phasing of improvements shall be approved by the COUNTY Department of Public Works. C. Prior to occupancy of any dwelling unit within the Property or prior to the issuance of an occupancy permit for the lodge, whichever occurs first, OCEANSIDE shall: (1) Complete construction of the roadway section from Keauhou to the makai extension of Haleki'i Street; and (2) Install a barricade or breakaway gate meeting with the requirements of the COUNTY Department of Public Works if, before the completion and opening of the entire Bypass Highway, a portion of said bypass is completed and opened, and said portion provides a connection to Haleki'i Street; d. In any event from the time construction commences, the entire Bypass Highway shall be completed within five (5) years provided that those certain circumstances as articulated in Paragraph (39) do not exist. 14. DEDICATION OF BYPASS HIGHWAY. The Bypass Highway shall be dedicated to the COUNTY in phases, if any, upon completion and the COUNTY shall accept said dedication within sixty (60) calendar days; provided that the Bypass Highway, as constructed, complies with plans and specifications for 13 said highway as approved by the County. Following dedication of the Bypass Highway to the COUNTY, the COUNTY shall assume all responsibility and costs for operation, maintenance, repair or reconstruction of the Bypass Highway. 15. REIMBURSEMENT OF CONSTRUCTION COSTS FOR THE BYPASS HIGHWAY. a. Responsibility of Developer. OCEANSIDE shall be responsible for all costs associated with the design, land acquisition, construction of the Bypass Highway, including, without limitation, the costs associated with obtaining any necessary Approvals associated with the same ("Total Cost"); provided that, nothing herein shall be construed as preventing OCEANSIDE from seeking reimbursement for such costs and the total amount of reimbursement received by OCEANSIDE shall not exceed the difference between the Total Cost of the Bypass Highway and the "Project Impact Cost", as described in further detail in Paragraph (I 5.a.1). (1) Based on a development constituting seven hundred thirty (730) lots and eighty (80) lodge units ("Project Unit Count"), the Project constitutes approximately thirty-eight (38) percent of the total capacity of the Bypass Highway based upon a Level of Service "D" ("Project Impact"). Should OCEANSIDE develop less or more than the Project Unit Count, then the percentage of traffic attributable to the Project shall be adjusted accordingly. The Total Cost of the" Bypass Highway multiplied by the Project Impact shall determine the Project Impact Cost. For example, if the Total Cost of the Bypass Highway is $1.0 million and the Project Impact is thirty-eight (38%) percent, the Project Impact Cost is $380,000.00. In such a case, OCEANSIDE shall then be eligible to receive no more than $620,000 of reimbursement ($1.0 million minus $380,000). (2) The remaining balance of the Total Cost of the Bypass Highway after deducting OCEANSIDE's and Kealakekua Development Corporation's share shall be reimbursed to OCEANSIDE with funds from income sources identified in Paragraph (15.c.1) for costs incurred by OCEANSIDE in the land acquisition, design, planning, construction, development and approval of the Bypass Highway. b. Adoption of a Impact Fee Ordinance. Should the County Council adopt a Impact Fee Ordinance, OCEANSIDE shall receive one (1) unit of credit for every $3,101.68 it has spent toward the construction of the Bypass Highway and the Haleki'i Street intersection improvements. The credits may be applied toward the requirements of an Impact Fee Ordinance. C. Funds for Reimbursement. During the course of this Agreement, if the COUNTY approves new rezonings in the vicinity of Mamalahoa Highway, then the COUNTY shall assess those new developments a "Fair Share" contribution in accordance with Council policy, or similar fee, to address the regional impacts of their development on road facilities. In the event that the COUNTY collects funds for 14 such "Fair Share" contributions, or similar fees, as may be allowed by the rezoning ordinances, and as identified in Paragraphs (15.c. I. and 15.c.2. herein) from developers and landowners whom the County has determined as benefitting from the Bypass Highway, the COUNTY shall reimburse OCEANSIDE from such funds as they are collected. (1) Funds to reimburse OCEANSIDE shall be from, but not limited to, the following sources: (a) "Fair Share" contributions paid to the COUNTY to address potential regional impacts of their development on road facilities; (b) Upon the adoption of a Impact Fee Ordinance that assesses or imposes an. impact fee either -for the COUNTY as a whole or for the region extending from Keauhou to Milolii, that portion of the impact fee necessary to address potential regional impacts on road facilities; (c) Any other monetary contribution paid to the COUNTY from developers or land owners, whom the COUNTY determines as benefiting from the Bypass Highway, to address potential regional impacts of such developer's or land owner's development on road facilities; (2) In addition to the reimbursement funds identified in Paragraph (I 5.c.1), OCEANSIDE shall be entitled to "Fair Share" contributions in the amount of $3.6 million, as may be adjusted from time to time, paid to the COUNTY by Kealakekua Development Corporation or its successors to address potential regional impacts of Kealakekua Development Corporation's project, less $1.3 million representing contributions toward Mamalahoa Highway Improvements and improvements to Greenwell Park as required by Conditions K and N(2), respectively, of Ordinance 95-70, as may be amended. (3) Should the COUNTY Council adopt an Impact Fee Ordinance, developers and land owners whom the COUNTY determined as benefitting from the Bypass Highway shall receive Highway Credits to be applied toward the requirements of a Impact Fee Ordinance. (4) As long as the COUNTY shall assess those new rezonings in the vicinity of Mamalahoa Highway a fair share contribution in accordance with Council policy, or if adopted, an impact fee, to address the regional impacts of their developments on road facilities, OCEANSIDE acknowledges and understands that should any funds or options identified in the preceding sections 15.b and c. fail to materialize or fail to meet the remainder of the total cost of the Bypass Highway, the COUNTY shall not be held responsible for any reimbursements. d. "Benefit" to Other Developments. The COUNTY finds that certain geographic portions of Mamalahoa Highway are currently congested and that any new development is severely restricted because of traffic considerations. Developments within the geographic region extending from Keauhou to the north and to Milolii to the south will benefit in varying degrees from the construction of the Bypass 15 • • Highway. This benefit is based on the congestion relief provided by the Bypass Highway to Mamalahoa Highway/Kuakini Highway as well as by providing direct access to the land along the Bypass Highway corridor. Accordingly, the amount of the "benefit" of the bypass Highway will vary by geographic region. (1) Amount of Reimbursement to OCEANSIDE. The amount of the COUNTY's reimbursement to OCEANSIDE shall be based on a percentage of those income sources identified in subparagraph (15.c) which are collected or assessed by the COUNTY from other developers and land owners whom the COUNTY has determined as benefitting from the Bypass Highway. The percentage paid shall be in accordance with the geographic areas as described below, and as more particularly shown on Exhibit "P" Area Description 1. Keauhou 2. Honalo-Captain Cook - Existing Mamalahoa Hwy.Corridor 3. Honalo-Captain Cook - Mauka Area 4. Honalo-Captain Cook - Makai Area 5. Captain Cook to Milolii Percentage 25%* 80% 100% 100% 65% *In recognition of the existing Keauhou road and traffic improvements, any "Fair Share" contribution, impact fee or similar fee assessed on new rezonings by the County Council in the Keauhou Area may be satisfied in the form of cash, land and/or facilities, or any combination thereof acceptable to the director. (2) Collection of Funds. Any Reimbursement Funds received by COUNTY shall be held in trust for OCEANSIDE and promptly remitted to OCEANSIDE by the COUNTY no later than ninety (90) days following the COUNTY's receipt of such remittance. e. Private Agreements. The provisions of this Paragraph shall not preclude OCEANSIDE from entering into private agreements with the State and/or such other developers or landowners to allocate the payment of Reimbursement Funds related to the Bypass Highway directly to OCEANSIDE. OCEANSIDE shall submit receipts of such payments to the COUNTY. f. Reimbursement Agreement. The provisions for reimbursement contained in this Agreement shall constitute an agreement for reimbursement between COUNTY and OCEANSIDE, which agreement shall satisfy the mandates of Condition L of Ordinance 96-8, and Condition M of Ordinance 96-7. 16. ROADWAY STUB -OUTS. OCEANSIDE shall provide roadway stub -outs, generally shown in Exhibit "Q", to provide future connections between the Property and its adjacent north and south boundaries. Such roadway stub -outs shall be constructed in phases and in conjunction with the completion of subdivision improvements on adjacent Property. 16 17. PUBLIC ACCESS PLAN. OCEANSIDE shall develop, in consultation with community groups, a final comprehensive Public Access Plan. The Public Access Plan shall be submitted to and approved by the Director prior to final subdivision approval of the first small -lot subdivision. a. The final comprehensive Public Access Plan shall be developed in consultation with the Director and the Hawaii State Department of Land and Natural Resources ("DLNR") and shall include mauka-makai and lateral shoreline accesses, parking area(s), signage, emergency response considerations, restrictions on use (if any), provision of recreational and restroom facilities at appropriate locations, and related improvements. b. In accordance with Ordinance 96-7 and 96-8, the Public Access Plan shall also integrate at the trail heads, shoreline access parks and the historical park, any public accessway(s) to the interpretive trail system(s) and to the historical and archaeological sites. Such a Public Access Plan shall be approved by the Director, in consultation with the DLNR. In developing the Public Access Plan, OCEANSIDE should attempt to protect both land and ocean resources and natural conditions, as reasonably practicable. 18. COASTLINE PARK. OCEANSIDE shall develop the portion of its lands in the Property located in the Conservation District for use as a Coastline Park for the benefit of the public pursuant to the Approvals. a. Construction and Development of the Coastline Park. OCEANSIDE shall be responsible for any and all costs associated with the design, operation and maintenance, construction and development of the Coastline Park, including, without limitation, the costs associated with obtaining any necessary Approvals associated with the same. Notwithstanding the foregoing, OCEANSIDE may transfer it obligations, in whole or in part, under this paragraph to the Project's "Homeowner Association" or other similar entity formed for the purpose of serving as the governing body for all the members and owners of the Project for the protection, improvement, alteration, maintenance, repair, replacement, administration and operation of the common areas, for the assessment of expenses, for the payment of losses, and for other matters as may be provided for in the Project's Declaration, the Homeowner Association's Articles of Incorporation, the Homeowner Association's By-laws, or the Project's Design Guidelines, The Declaration shall contain language providing for the perpetuity of the Coastline Park and its availability to the public for use in accordance with certain rules and guidelines that will be established in the public access plan as required under SMA Permit No. 345 to be submitted by OCEANSIDE to the Director for approval. Additionally, if requested by OCEANSIDE or the Homeowner Association, and if approved by the COUNTY, which approval shall not be unreasonably withheld, said Developer or the Homeowner 17 Association may assign its responsibilities, in whole or in part, under this paragraph to a foundation or other entity to assume the duties and obligations stated herein. b. The construction and development of the Coastline Park shall be completed in phases roughly proportional to the phases of the Project's development as may be approved by the Director pursuant to the Approvals and shall be subject to the obtaining of all necessary discretionary permits (e.g. Conservation District Use Approval, Special Management Area Use Permit, etc.). (1) An area comprising twenty five percent (25%) of the total Coastline Park as shown on Exhibit "It" attached hereto and incorporated herein by this reference, shall be developed and improved by OCEANSIDE in phases within five (5) years from the date final Small -lot Subdivision Approval is obtained on any portion of the Property. (2) The first phase of the Coastline Park shall be opened to the public within thirty (30) days following the opening of the golf course. (3) In accordance with Ordinance 96-7 and 96-8, upon opening the first phase of the park area, OCEANSIDE shall provide: (a) a minimum of twenty-five (25) public parking stalls, with separate parking stalls for residents and their guests, and separate parking stalls for the Coastline Park's employees. As may be imposed in permits necessary to complete the Coastline Park's improvements, the parking stalls shall, at OCEANSIDE's discretion, either be within the Coastline Park and/or within OCEANSIDE's adjacent lands. The number of parking stalls shall be increased commensurately with the approval of additional park phases in accordance with the public access plan; (b) signage and provisions for public access for night fishing and marine food gathering purposes subject to restrictions which limit said uses to non-commercial and recreation uses only; and public. (c) other restrictions which provide for the health and safety of the C. In accordance with SMA Permit No. 345, upon the approval of the final comprehensive public access plan, draft covenants which detail the rights, obligations and privileges of the public, the County of Hawaii and OCEANSIDE, its successors or assigns shall be submitted to the Director for approval. The approved covenants shall be recorded in the manner required pursuant to SMA Permit No. 345. d. Prior to receiving final approval of the first Small -lot Subdivision, OCEANSIDE shall convey to COUNTY a perpetual easement for public access over and recreational use of the Coastline Park area pursuant to such restrictions as may be established by OCEANSIDE with the approval of the 18 Director, to promote public health and safety and the general security of the Coastline Park for residents and guests of the Project, to protect the area's natural condition, and to minimize any liability to OCEANSIDE, pursuant to HRS Chapter 520. e. OCEANSIDE's fee simple interest in the land area of the Coastline Park shall be retained by OCEANSIDE, who shall own and manage the Coastline Park; provided that OCEANSIDE, in its sole discretion, may transfer management' responsibilities for the Coastline Park to any homeowners' association or other entity which may be formed for the Project subject to the aforementioned covenants. 19. GUEST HOUSES. Nothing herein shall be construed as prohibiting the construction of "guest houses" within the Project as the term is defined in Zoning Code section 25-1-5(55), as allowed under Zoning Code section 25-4-9, and pursuant to Chapter 205-6, HRS. 20. GENERAL DEVELOPMENT OF THE PROJECT. OCEANSIDE shall have the right to develop the Project, the Bypass Highway and the Coastline Park in accordance with the terms and conditions of this Agreement and the Approvals, and the parties shall have the right to enforce the provisions of this Agreement. The parties hereto acknowledge that this Agreement is intended to implement the intent of the parties and that OCEANSIDE shall have the right to develop the Project, the Bypass Highway and the Coastline Park pursuant to the Land Use Regulations and Approvals, subject to its adherence to and performance of all terms and conditions of this Agreement. In the event that a question arises regarding OCEANSIDE's and the COUNTY's responsibilities or their intent, the parties shall look toward this Agreement to clarify such issues. 21. SUBSEQUENT CHANGES IN LAND USE REGULATIONS. Any subsequent change in any applicable law adopted by the COUNTY or any other governmental entity or agency party to this Agreement, which alters or amends the Land Use Regulations, including, without limitation, any moratoriums, shall be void as applied to the Property; provided that this Paragraph shall not prevent the COUNTY or any other governmental entity or agency party to this Agreement from requiring OCEANSIDE to comply with laws, ordinances, resolutions, rules and policies of general applicability and not specific to OCEANSIDE enacted subsequent to the date of this Agreement, if, under prior law, such laws, ordinances, resolutions, rules and policies could have been lawfully applied to the Property or any uses thereof as of the date of this Agreement if the COUNTY or any other governmental entity or agency party to this Agreement finds it necessary to impose the requirements because a failure to do so would place the residents of the Project or the immediate community in a condition perilous to the residents' health or safety, or both. 22. NECESSARY COUNTY APPROVALS. a. With regard to any applications to the COUNTY by OCEANSIDE for any and all appropriate COUNTY Approvals required for the construction or development of the Project, the Bypass 19 Highway and the Coastline Park, the COUNTY shall process such applications under the Land Use Regulations and issue to OCEANSIDE all such approvals; provided that such applications are consistent with and conform to the standards, terms and conditions of this Agreement and the Land Use Regulations; and provided further, that the COUNTY shall not impose on OCEANSIDE any further Exactions or requirements other than those already existing as of the date of the Enacting Resolution under the Approvals. The COUNTY shall accept and process expeditiously any application(s) submitted under this Paragraph or otherwise required under the terms of this Agreement within such time frames as specified within the Land Use Regulations; provided, however, that if the Land Use Regulations do not contain a specific time frame for processing such application(s), the application(s) shall be processed within a reasonable amount of time from the date of receipt of a complete application(s) by the COUNTY; and provided further. that if, for any reason, the application(s) as submitted by OCEANSIDE is/are not complete, the COUNTY shall promptly request from OCEANSIDE any information or materials necessary to complete the application(s). 23. CONFORMANCE WITH THE COUNTY GENERAL PLAN. AND COMMUNITY DEVELOPMENT PLANS. By virtue of the County Council's approval of the Enacting Resolution, the County Council finds that as of the date of this Agreement, this Agreement is consistent with the COUNTY's General Plan as amended, and any applicable community development plans adopted by the County Council and in effect as of the date of this Agreement; provided, however, that in the event of any inconsistency between the County General Plan and any applicable community development plan by ordinance, the County General Plan shall prevail. 24. ANNUAL REVIEW. On or before January 14th of each and every year following the execution of this Agreement, OCEANSIDE shall submit an annual report of its compliance with the terms and conditions of this Agreement to the Planning Department, or such agency as the COUNTY designates in writing to OCEANSIDE; provided further, that the Planning Department or such designated agency shall review such report for adequacy and accuracy and shall forward a copy of the annual report together with its findings and any other comments to the Mayor, County Council, OCEANSIDE and any other parties to this Agreement within sixty (60) days. 25. MATERIAL BREACH BY OCEANSIDE. a. Within thirty (30) days after the Planning Department or the Office of the Mayor determines on the basis of the periodic report that OCEANSIDE has committed a material breach of the terms or conditions of this Agreement, the Planning Department or the Office of the Mayor, as applicable, shall inform OCEANSIDE in writing of the same, setting forth with reasonable particularity the nature of 411 the breach and any and all evidence supporting the finding and determination; provided, however, that OCEANSIDE shall be given a reasonable.time period in which to cure any such material breach. b. OCEANSIDE shall have one hundred eighty (180) days to cure the material breach. If OCEANSIDE fails to cure the material breach within that time, the COUNTY may terminate or modify the terms of this Agreement in accordance with. HCC section 30-6; provided, however, that the Office of the Mayor shall have first given the OCEANSIDE the opportunity: (1) To rebut the finding and determination by the Office of the Mayor of the existence of the material breach; or (2) To consent to amend this Agreement according to such terms as the Office of the Mayor may elect to propose in order to cure the material breach; provided, however, that such amendments must be accepted and approved by the County Council pursuant to Paragraph (27), herein. C. Upon the mutual agreement of the parties to the Agreement, this Agreement may be terminated by County Council resolution if: (1) OCEANSIDE does not agree to such amendments proposed by the Office of the Mayor or as subsequently modified by the County Council pursuant to Paragraph (27), herein; or (2) The County Council reasonably rejects the amendments proposed by the Office of the Mayor and the County Council states its reasons, in writing, for rejecting the proposed amendments. d. Should the County Council terminate this Agreement, OCEANSIDE will have the right to appeal such a decision to a court of law, in which case the standard of review shall be whether the County Council acted reasonably in its termination of this Agreement. The termination of this Agreement pursuant to this Paragraph shall not preclude any rights or remedies that would have existed had this Agreement not been entered into.. 26. EXTENSION OF TIME. a. IPursuant to Ordinances 96-7, 96-8 and 97-36, upon written request of OCEANSIDE to the Director, any dates of commencement or completion for the Bypass Highway or the Coastline Park may be extended by the Director at OCEANSIDE's request. b. Notwithstanding any extension limitations set forth herein, upon written request by either party for an extension of time in which to complete its obligations hereunder which request is made due to a delay in the performance of any of the obligations of either party, a reasonable extension of the commencement, completion, or termination dates shall be granted by the other party for the performance of the terms of this Agreement; provided, however, that the delay in performance must be due to an unforeseeable cause or causes beyond the control and without the fault or negligence of either party, 21 including, without limitation, acts of God; acts of the public enemy, fires, floods, epidemics, quarantine restrictions, strikes or walkouts, freight embargoes, or unusually severe weather. C. Nothing in this Agreement shall be construed to preclude the parties hereto from further extending any commencement, completion or termination date hereunder by mutual agreement, or from entering into subsequent agreements subject to the approval of the County Council. 27. AMENDMENT OR CANCELLATION OF AGREEMENT. This Agreement maybe amended or canceled, in whole or in part, by mutual consent of the parties to this Agreement, or their successors in interest, as further evidenced by County Council resolution; provided that if the County Council determines that the proposed amendment would substantially alter the original terms of this Agreement, a public hearing on the amendment shall be held by the County Council before it consents to the proposed amendment. Non -substantive or technical amendments which affect only procedural requirements under this Agreement or do not materially alter the original terms of this Agreement shall only require the approval of the Office of the Mayor, without action by the County Council; and provided .further that cancellation of this Agreement pursuant to this Paragraph shall not preclude any rights or remedies that would have existed had this Agreement not been entered into. 28. DISCRETION TO ENCUMBER. This Agreement shall not prevent or limit OCEANSIDE, in any manner and at OCEANSIDE's sole discretion, from encumbering all or any portion of the Property, or any improvement on the Property by any mortgage, deed of trust, or other security device securing financing with respect to the Property or any improvements located thereon. 29. OBLIGATION TO MODIFY. The COUNTY acknowledges that any Lenders providing financing under Paragraph (28), herein, may require certain modifications to this Agreement, and the COUNTY agrees, upon request from time to time, to meet with OCEANSIDE and/or representatives of such lenders to negotiate in good faith any such requirement for modification. The COUNTY shall not unreasonably withhold its consent to any such requested modification, and any such modifications shall be subject to the provisions of Paragraph (27), herein. 30. ENTITLEMENT TO WRITTEN NOTICE OF DEFAULT. The mortgagee of a mortgage or beneficiary of a deed of trust encumbering all or any portion of the Property and their successors and assigns shall, upon written request to the COUNTY, be entitled to receive from the COUNTY written notification of any default by OCEANSIDE of the performance of OCEANSIDE's obligations under this Agreement which has not been cured within such time period as set forth in Paragraph (25), herein. 31. COOPERATION. The COUNTY shall not impede OCEANSIDE in carrying out the transactions contemplated herein and in obtaining all required approvals, authorizations, and clearances. Furthermore, the COUNTY shall cooperate with OCEANSIDE in executing and delivering in recordable 22 form all documents, instruments, or copies thereof; in providing non-financial and/or non-proprietary information deemed reasonably necessary or useful by the other party or parties; in delivering prompt payment of any monies required to be paid to the other party or parties under this Agreement; and to process, in a timely manner, any and all construction, permit or other applications relating to the Project, the Bypass Highway or the Coastline Park. With regard to any application(s) submitted by OCEANSIDE to any other governmental or quasi -governmental agency having jurisdiction over the Project, the Bypass Highway or the Coastline Park for any and all appropriate Approvals required for the construction or development of the Project, the Bypass Highway, or the Coastline Park the COUNTY shall not impede OCEANSIDE in obtaining such Approvals. 32. ASSIGNMENT. OCEANSIDE shall have the right to sell, assign or transfer, in whole or in part, this Agreement, and all of its rights, duties and obligations hereunder, to any entity, subsidiary, or partner of OCEANSIDE at any time during the term of this Agreement upon written notice to the Director. Such a transfer shall be considered a non -substantive or technical amendment that does not alter the material terms of this Agreement and which does not require action by the County Council, nor the approval of the Office of the Mayor. 33. ENFORCEMENT. Unless terminated pursuant to Paragraph (25) or canceled pursuant to Paragraph (27) herein, this Agreement, as amended or modified, shall be enforceable by any party hereto, or its successors in interest or assigns, notwithstanding any change in any applicable law, which alters or amends the Land Use Regulations or Approvals, the Development Agreement Statute, the Development Agreement Code, or the Development Agreement Rules, that is adopted by the COUNTY or any other party to this Agreement after the date of the Enacting Resolution. 34. WAIVER. The failure of any party to this Agreement to insist upon strict performance of any of the covenants or conditions herein, or to exercise any option herein conferred, or the waiver of a breach, shall not be deemed a waiver of such party's right to demand strict compliance by such other party in the future, nor shall it be deemed a relinquishment or waiver for the future of any rights, covenants, conditions or options under this Agreement. 35. GENDER. The terms "COUNTY" and "OCEANSIDE", wherever used herein, or any pronoun used in place thereof, shall mean and include the masculine or feminine or neuter gender, the singular or plural number, jointly and severally, individuals, firms or corporations, and their and each of their respective successors, legal representatives and assigns, according to the context thereof. 36. NO PARTY DEEMED DRAFTER. No party shall be deemed the drafter of this Agreement. If this Agreement is ever construed by a court of law, such court shall not construe any provision thereof against any party as drafter. 23 37. NO PARTNERSHIP. Nothing contained in this Agreement is intended, nor shall be construed to establish an agency relationship, a partnership or a joint venture between the parties hereto. 38. APPLICABLE LAW. This Agreement shall be governed by the laws of the State of Hawaii both as to interpretation and performance. 39. FORCE MAJEURE. In the event that either 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 legislation, regulation or controls, or economic controls, making it impossible to complete any duties, obligations, or conditions provided for and 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. Under no circumstances shall this provision operate or be construed to excuse either party from the payment of any sum required to be paid to the other party. OCEANSIDE or the COUNTY shall notify the other in writing of any force majeure event upon which OCEANSIDE or the COUNTY intends to rely upon for an extension of the period for the performance of any such duty, obligation, or condition, and shall also notify the other in writing of the date on which any such force majeure event ended. 40. GOOD FAITH. Either party to this Agreement shall perform its duties under this Agreement in good faith. 41. COMPUTATION OF PERIODS. All periods of time referred to in this Agreement shall include all Saturdays, Sundays and state or national holidays; provided, however, that if the date or last date to perform any act or give any notice with respect to this Agreement shall fall on a Saturday, Sunday or state or national holiday, such act or notice may be timely performed or given on the next succeeding day which is not a Saturday, Sunday or state or national holiday. 42. SEVERABILITY. If any provision of this Agreement, or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of any provisions thereof to other persons or circumstances shall not be thereby affected. 43. ENTIRE AGREEMENT. This Agreement embodies the entire agreement of the parties hereto and supersedes any other agreements or understandings with respect to the subject matter hereof that may ever have existed between the parties. 24 44. SECTION AND PARAGRAPH HEADINGS. Section and paragraph headings are inserted only for convenience and reference and in no way define, limit, extend or describe the scope of intent of this Agreement, or any provisions thereof. 45. ADMINISTRATIVE ACT. The approval of this Agreement shall, under Development Agreement Statute HRS section 46-131, be deemed an administrative act of the COUNTY and any and all governmental agencies or entities party to this Agreement. 46. BINDING EFFECT. The terms and conditions of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to and assigns of the parties hereto, and the covenants contained herein shall run with the land. 47. ENTITIES OBLIGATED. Except as provided to the contrary herein, individual lot purchasers or builders, mortgagees or beneficiaries shall not have the obligation or duty under this Agreement to perform the obligations of OCEANSIDE or other affirmative covenants of OCEANSIDE hereunder, or to guarantee such performance. 48. PARTIAL RELEASE. Any terms and restrictions of this Agreement which are satisfied as of the annual review shall be released upon request of OCEANSIDE; provided that any such release shall be in recordable form that OCEANSIDE may record in the Office of the Assistant Registrar of the State of Hawaii and/or the State of Hawaii Bureau of Conveyances, as applicable, within twenty (20) days of the execution of such release. 49. COMPLIANCE CERTIFICATE. If, during the annual review conducted pursuant to Paragraph (24), herein, the Planning Department finds compliance by OCEANSIDE with the terms of this Agreement, the Planning Department shall issue a certificate of compliance in recordable form that OCEANSIDE may record in the Office of the Assistant Registrar of the Land Court of the State of Hawaii and/or the State of Hawaii Bureau of Conveyances, as applicable. 50. SATISFACTION. Upon the satisfaction of the terms and conditions of this Agreement, and upon request by the Office of the Mayor and OCEANSIDE, the County Council shall propose and approve a resolution indicating that this Agreement has been satisfied. 51. FINAL RELEASE. The COUNTY agrees that upon written request of OCEANSIDE and payment of all fees and performance of the obligations of OCEANSIDE under this Agreement with respect to all or any portion of the Property, the COUNTY shall execute and deliver to OCEANSIDE appropriate release(s) of OCEANSIDE from any and all further obligations under this Agreement in such form and substance necessary to effect such release and to record the same with the Office of the Assistant Registrar of the Land Court of the State of Hawaii and/or the State of Hawaii Bureau of Conveyances, as applicable; provided that any such release shall be recorded within twenty (20) days of its execution. 25 52. ADMINISTRATION OF THIS AGREEMENT. The Planning Department shall be responsible for the overall administration of this Agreement. 53. RECORDATION. The Planning Department, or such other executive agency designated in writing to OCEANSIDE by the. Mayor, shall file or record copies of this Agreement and any amendment or modification hereto in the Office of the Assistant Registrar of the Land Court of the State of Hawaii or in the State of Hawaii Bureau of Conveyances, or both, whichever is applicable, within twenty (20) days after the execution of this Agreement, or twenty (20) days after any amendment hereto. 54. COUNTERPARTS. The parties hereto agree that this Agreement may be executed in counterparts, each of which shall be deemed an original, and said counterparts shall together constitute one and the same instrument, binding all of the parties hereto, notwithstanding that all the parties are not signatories to the original or the same counterparts. For all purposes, including, without limitation, the recordation, filing and delivery of this Agreement, duplicate, unexecuted and unacknowledged pages of the counterpart may be discarded and the remaining pages assembled as one (1) document. 55. FACSIMILE DOCUMENTS. The parties agree to accept facsimile executed documents as if they were originally signed documents. Any party submitting facsimile signatures shall provide the other parties with originally signed replacement documents within five (5) business days from the date of receipt by such other parties of the facsimile executed documents. 56. NOTICES. Unless otherwise provided herein, any notice to either party given under this Agreement shall be in writing and given by delivering the same to such party in person, or by sending the same by registered, certified or express mail, return receipt requested, first class postage prepaid, to the party's address as first noted herein, or as otherwise provided through written notice to the other party. 57. PUBLIC DEDICATION. Unless otherwise provided by OCEANSIDE in writing, this Agreement shall not be deemed a gift or dedication of the Project or the Property, or any portion thereof, to the general public, for the general public, or for any public use or purpose whatsoever, it being the intention and understanding of the parties that this Agreement be strictly limited to and for the purposes expressed herein for the development of the Project and the Property as private property. 26 • r IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. COUNTY OF HAWAII "COUNTY" Approved as to form and legality: Corporation Counsel By �Z�D�E�Pk4s0 40 Its Mayor 1250 OCEANSIDE PARTNERS "OCEANSIDE" Approved as to form and legality: By RED HILL 1250, INC. Its General- Partner V - - I Its Legal Counsel By Richard T. Frye Its Vice President 27 STATE OF HAWAII ) ss: COUNTY OF HAWAII On this Aon day of 6rll , 19 98 , before me, K• Y -e-16 I the undersigned Notary Public, personaklly appeared STEPHEN K. YAMASHIRO, to me personally known, who, being. by me duly sworn, did say that he is the Mayor of the COUNTY OF HAWAII, a municipal corporation of the State of Hawaii; that the seal affixed to the foregoing instrument is the corporate seal of said COUNTY OF HAWAII; that the foregoing instrument was signed and sealed on behalf of COUNTY OF HAWAII by authority given to said Mayor of the County of Hawaii by Section 5-1.3(g) of the County Charter, County of Hawaii (1991), as amended; and said STEPHEN K. YAMASHIRO acknowledged said instrument to be the free act and deed of said COUNTY OF HAWAII. t� J., LNotar Public, St to of Hawaii My commission expires: 16 aooj L.3 STATE OF HAWAII SS: COUNTY OF HAWAII On this lel": day of ;1 1998, before me appeared Richard T. Frye,`ce, P who, being y me duly sworn, did say that he is the Vice President of Red Q ' Hill 1250, Inc., general partner of 1250 OCEANSIDE PARTNERS dba OCEANSIDE 1250, a Hawaii limited partnership, that the foregoing instrument was signed in the name of and in behalf of said partnership, and said Richard T. Frye acknowledged that he executed the same as his free act and deed and as the free act and deed of said partnership. a.Q ai Notary Public, Stat of Hawaii My commission expires: al/ (/ao o L • S. 29 List of Exhibits Exhibit A Description Map describing portion of the Property owned by OCEANSIDE in I fee simple and that portion that is leased.' B Ordinance No. 96-8 C Ordinance No. 96-7 D SMA Permit No. 345 E Use Permit No. 115 F SMA Permit No. 356 G Ordinance No. 97-36 H Mamalahoa Highway bypass detail and description. I Enacting Resolution approving the Agreement (not available until after Council acts). J Project Plan - Agricultural lot community and its various components, including the lodge and coastline park. Excludes the Mamalahoa Highway Bypass. K Map identifying 260.8 acres as TMK 7-9-12:04 and 11, which is leased from Ackerman Ranch. L Short Form of Ackerman Ranch lease. M Construction standards for the Mamalahoa Highway Bypass. N Sample Letter releasing OCEANSIDE from all further responsibilities and obligations with respect to segments of the Mamalahoa Highway Bypass. O Map of the relevant phases of the extension of Halekii Street through the Property. P Map of geographic areas for reimbursement. List of Exhibits Q Map of roadway stub -outs providing future connections between Property and its north and south boundaries. R Coastline Park S Ordinance No. 94-73 T1 Mamalahoa Highway Bypass TMK Map T2 Mamalahoa Highway Bypass TMK Map FA lwmmp���� EXHIBIT • • COUNTY O F HAWAII STATE OF HAWAII BILL NO. 181 (Draft 6) ORDINANCE NO. 96 8 AN ORDINANCE AMENDING SECTION 25-87 (NORTH KONA ZONE MAP) AND SECTION 25-88 (SOUTH KONA ZONE MAP), ARTICLE 3, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE, AND ORDINANCE NO. 94-73, WHICH CLASSIFIED CERTA N., LANDS FROM AGRICULTURAL (A -5a) AND UNPLANNED (U) TO AGRICULTURAL (A- I a) AT HONUAINO 3RD AND 4TH, HOKUKANO 1 ST AND 2ND. KANAUEUE 1 ST AND 2ND, HALEKII, KEEKEE 1 ST AND 2ND, ILIKAHI, KANAKAU 1 ST AND 2ND, KALUKALU 1 ST, 2ND AND 3RD AND ONOULI 1 ST, NORTH AND SOUTH KONA. HAWAII, COVERED BY TAX MAP KEY 7-9-06:PORTION OF 1, 7-9-12:PORTIONS OF 3, 4, AND 5 AND 8-1-04:PORTION OF 3. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Ordinance No. 94-73 is amended as follows: "SECTION 1. Section 25-87, Article 3, Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of properties described hereinafter as follows: The district classification of the following area situated at Kanaueue 1 st and 2nd. North Kona. Hawaii, shall be Agricultural (A-1 a): PARCEL 1: Beginning at the Southeasterly comer of this parcel of land, being also a point on the Northerly boundary of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions, being also a point on the division between North and South Kona, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PW OHAU" being 1,704.58 feet North and 6,126.02 feet East and running by azimuths measured clockwise from True South: 1. 71 ° 45' 902.30 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 2. 1520 14' 1,055.02 feet along the remainder of Grant 865 to John Nakookoo to a point; EXHIBIT B -1- Thence, for the next seven (7) courses following along middle of stonewall and along Grant 992 to W. Whitmarsh: 3. 2510 23' 30" 224.69 feet to a point; 4. 250° 35' 58.35 feet to a point; 5. 255 ° 17' 131.07 feet to a point;. 6. 2400 43' 26.91 feet to a point; 7. 2570 50' 172.57 feet to a point; 8. 2430 13' 30" 21.91 feet to a point; 9. 2560 57' 98.95 feet to a point; Thence, for the next twelve (12) courses following along middle of stonewall and along the remainder of Grant 865 to John Nakookoo: 10. 3380 17' 30" 158.36 feet to a point; 11. 2570 24' 102.95 feet to a point; 12. 255* 40' 30" 171.35 feet to a point; 13. 261 " 29' 101.46 feet to a point; 14. 3460 30' 30". 54.40 feet to a point; 15. 3430 21' 30" 152.40 feet to a point; 16. 3460 20' 165.46 feet to a point; 17. 3430 29' 30" 80.88 feet to a point; 18. 357° 13' 57.51 feet to a point; 19. 345' 53' 30" 154.41 feet to a point; 20. 33330 53' 114.71 feet to a point; 21. 3459 43' 43.78 feet to the point of beginning and containing an area of 22.251 Acres. more or less. (Refer to Parcel 1 as shown on Exhibit "A"). -1- • The district classification of the following area situated at Honuaino 3rd and 4th. Hokukano 1 st and 2nd and Kanaueue 1 st and 2nd, North Kona, Hawaii, shall be Agricultural (A -la): PARCEL": Beginning at the Northwesterly corner of this parcel of land, being also a point on the Southerly boundary of Royal Patent 1098, Land Commission Award 614 to Charles Hall, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 5,408.20 feet North and 934.23 feet East and running by azimuths measured clockwise from True South: Thence, for the next sixty-seven (67) courses following along middle of stonewall and along Royal Patent 1098, Land Commission Award 614 to Charles Hall: 1. 1720 44' 35.46 feet to a point; 2. 250° 06' 26.01 feet to a point; 3. 245* 26' 19.20 feet to a point; 4. 2510 15' 39.58 feet to a point; 5. 259° 25' 18.68 feet to a point; 6. 246° 50' 16.35 feet to a point; 7. 2540 27' 40.28 feet to a point; 8. 3230 16' 7.32 feet to a point; 9. 2490 32' 44.32 feet to a point; 10. 2650 01' 30" 16.93 feet to a point; 11. 2710 10' 30" 50.61 feet to a point; 12. 261 ° 46' 30" 67.77 feet to a point; 13. 2560 32' 30" 36.61 feet to a point; 14. 2629 38' 30.23 feet to a point; 15. 2580 17' 37.28 feet to a point; 16. 2540 45' 21.32 feet to a point; 17. 2570 35' 30" 36.22 feet to a point; 18. 265* 03' 21.89 feet to a point; 19. 263 ° 53' 30" 45.49 feet to a point, 20. 266° 14' 44.43 feet to a point; 21. 2490 07' 32.29 feet to a point; 22. 2560 49' 30" 41.74 feet to a point; 23. 2500 03' 30" 91.17 feet to a point; 24. 2570 28' 88.18 feet to a point; 25. 253* 37' 30" 14.36 feet to a point; 26. 2710 49' 7.86 feet to a point; 27. 243o 18' 30" 43.30 feet to a point; 28. 2520 36' 45.75 feet to a point; 29. 2620 29' 35.65 feet to a point; 30. 2650 31' 13.70 feet to a point; 31. 2600 35' 30" 76.29 feet to a point; 32. 2680 05' 30" 59.53 feet to a point; 33. 2530 44' 30" 12.40 feet to a point; 34. 2590 40' 25.69 feet to a point; 35. 2640 02' 51.71 feet to a point; 36. 259° 49' 30" 85.74 feet to a point; 37. 2660 56' 48.70 feet to a point; 38. 2650 44' 61.02 feet to a point; 39. 272° OS' 60.95 feet to a point; 40. 2690 19' 30" 91.04 feet to a point; 41. 2750 29' 26.42 feet to a point; 42. 2800 52' 30" 26.76 feet to a point; -4- 43. 2720 21' 30 28.45 feet to a point; 44. 2770 12' 46.47 feet to a point: 45. 273° 22' 30" 84.54 feet to a point; 46. 273 ° 04' 30" 57.99 feet to a point; 47. 2700 29' 30.67 feet to a point; 48. 275° 46' 30" 91.01 feet to a point; 49. 2670 54' 30" 87.48 feet to a point; 50. 2610 05' 30" 28.16 feet to a point; 51. 2660 13' 128.24 feet to a point; 52. 270' 26' 114.47 feet to a point; 53. 2600 09' 81.24 feet to a point; 54. 2620 27' 166.66 feet to a point; 55. 2610 47' 108.98 feet to a point; 56. 243 ° 34' 33.10 feet to a point; 57. 2590 14' 30" 37.03 feet to a point; 58. 2650 34' 30" 7 7. 10 feet to a point; 59. 262° 59' 118.99 feet to a point; 60. 2560 19' 39.78 feet to a point; 61. 2620 44' 82.08 feet to a point; 62. 2670 50' 34.11 feet to a point; 63. 2650 25' 63.09 feet to a point; 64. 2730 36' 30" 112.92 feet to a point; 65. 268 ° 50' 151.03 feet to a point; 66. 2740 59' 30" 35.27 feet to a point; 67. 2680 30' 30" 48.40 feet to a point; m M Thence, for the next three (3) courses following along the Westerly side of old railroad and along the remainder of Grant 2029 to S. W. Makahiki: 68. 150 00' 431.60 feet to a point; 69. 00 23' 223.30 feet to a point; 70. 3330 44' 145.20 feet to a point; Thence, for the next seven (7) courses following along the Westerly side of old railroad and along the remainder of Grant 1453 to John Cavanah: 71. 3190 08' 63.63 feet to a point; 72. 3270 12' 30" 92.54 feet to a point; 73. 3330 41' 55.11 feet to a point; 74. 3410 52' 42.41 feet to a point; 75. 3500 21' 65.77 feet to a point; 76. 3570 IF 30" 87.84 feet to a point; 77. 7" 46' 82.65 feet to a point; 78. 17" 59' 209.88 feet along the Westerly side of old railroad and along the remainders of Grant 1453 to John Cavanah and Grant 1463 to Keawe to a point; Thence, for the next ten (10) courses following along the Westerly side of old railroad and along the remainder of Grant 1463 to Keawe: 79. 150 46' 30" 221.91 feet to a point; 80. 350" 40' 30" 86.03 feet to a point; 81. 346" 02' 30" 127.39 feet to a point; 82. 3470 43' 68.36 feet to a point; 83. 3560 37' 108.84 feet to a point; 84. 358° 09' 110.66 feet to a point; 85. 69 27' 30" 75.31 feet to a point; M 86. 357" 30' 30" 143.26 feet to a point; 87. 8" 45' 30" 30.57 feet to a point; 88. 359" 52' 108.27 feet to a point; 89. '_65" 47' 29.79 feet along the remainder of Grant 1463 to Keawe to a point; Thence. for the next eight (8) courses following along the Easterly side of old railroad and along the remainder of Grant 1463 to Keawe: 90. 357" 33' 107.96 feet to a point; 91. 352" 21' 72.88 feet to a point; 92. 356" 43' 30" 32.40 feet to a point; 93. 3530 27' 38.77 feet to a point; 94. 350" 36' 29.09 feet to a point; 95. 339" 51' 130.13 feet to a point; 96. 329" 39' 30" 32.22 feet to a point; 97. 326" 06' 51.01 feet to a point; 98. 324" 59' 10.48 feet along the Westerly face of stonewall and along the remainder of Royal Patent 5336, Land Commission Award 9413 to Kahana to a point; 99. 320" 39' 115.81 feet along the remainder of Royal Patent 5336, Land Commission Award 9413 to Kahana to a point; 100. 67" 26' 30" 92.41 feet along wire fence and along Grant 992 to W. Whitmarsh to a point; 101. 70" ' 35' 63.69 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point; 102. 67" 10' 30" 124.47 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point; 103. 720 45' 45" 371.54 feet along Grant 992 to W. Whitmarsh to a point; -7- 0 1 0 104. 790 49' 199.17 feet along Grant 992 to W. Whitmarsh to a point; Thence, for the next twenty-three (23) courses following along middle of stonewall and along Grant 992 to W. Whitmarsh: 105. 82 ° 05' 30" 51.64 feet to a point; 106. 830 18' 181.52 feet to a point; 107. 840 58' 30" 118.82 feet to a point; 108. 85* 30' 30" 145.13 feet to a point; 109. 910 09' 79.55 feet to a point; 1 l 0. 820 04' 95.77 feet to a point; I l 1. 820 31' 45" 212.72 feet to a point; 112. 359° 15' 512.31 feet to a point; 113. 2680 21' 280.72 feet to a point; 114. 2590 47' 379.67 feet to a point; 1 l 5. 2600 53' 149.26 feet to a point; 116. 2590 07' 153.59 feet to a point; 117. 2660 02' 30" 90.63 feet to a point; 118. 250° 32' 115.64 feet to a point; 119. 2400 54' 54.22 feet to a point; 120. 2460 41' 140.89 feet to a point; 121. 256° 30' 30" 95.53 feet to a point: 122. 2400 04' 30" 52.97 feet to a point; 123. 2450 12' 30" 66.16 feet to a point; 124. 2570 45' 30" 34.33 feet to a point: 12-5. 2390 59' 72.54 feet to a point; 126. 2500 39' 30" 70.76 feet to a point; -8- 127. 2460 08' 111.93 feet to a point; 128. 3320 14' 1,055.02 feet along the remainder of Grant 865 to John Nakookoo to a point; Thence, for the next flour (4) courses following along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions: 129. 640 12' 628.00 feet to a point; 130. 79° 26' 602.00 feet to a point; 131. 77° 00' 987.00 feet to a point; 132. 720 704.78 feet to a point; 133. 1540 42' 918.93 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainder of Grant 1587 to John Peters on a curve to the right with a radius of 1,030.00, the chord azimuth and distance being: 134. 1740 32' 30" 699.21 feet to a point; 135. 1940 23' 350.20 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainders of Grant 1587 to John Peters and Grant 1463 to Keawe on a curve to the left with a radius of 1,270.00 feet, the chord azimuth and distance being: 136. 1650 33' 1,224.95 feet to a point; 137. 1360 43' 68.92 feet along the remainder of Grant 1463 to Keawe to a point; Thence, following along the remainder of Grant 1463 to Keawe on a curve to the right with a radius of 1,030.00 feet, the chord azimuth and distance being: 138. 149° 59' 30" 473.03 feet to a point; 139. 163 ° 16' 839.35 feet along the remainders of Grant 1463 to Keawe, Grant 1453 to John Cavanah and Grant 2029 to S. W. Makahiki to a point; In Thence, following along the remainder of Grant 2029 to S. W. Makahiki on a curve to the left with a radius of 470.00 feet, the chord azimuth and distance being: 140. 1360 23' 15" 424.98 feet to a point; 141. 1650 15' 189.91 feet along Grant 1651 to Charles Hall to the point of beginning and containing an area of 295.539 Acres. (Refer to Parcel .2 as shown on Exhibit "A".) SECTION 2. Section 25-88, Article 3, Chapter 25 (Zoning Code) of the Hawaii County Code. is amended to change the district classification of properties described hereinafter as . follows: The district classification of the following area situated at Halekii and Keekee 1 st, South Kona. Hawaii, shall be Agricultural (A -la):. PARCEL 3: Beginning at the Northeasterly corner of this parcel of land, being also the Northwesterly corner of Lot 39 of Kona Scenic Subdivision, Unit II (File Plan 1591) and being a point' on the Southerly boundary of Grant 865 to John Nakookoo, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 2.272.75 feet North and 8,616.61 feet East and running by azimuths measured clockwise from True South: 3500 44' 55" 482.03 feet along Lots 39, 38, 37, 36, 35 and 34 of Kona Scenic Subdivision, Unit II (File Plan 1591) and along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions and along the Westerly end of Haleki'i Street to a point; ?. 780 30' 470.15 feet along Lot.3 (Government Land - County of Hawaii) to a point; 3. 348° 30' 438.70 feet along Lot 3 (Government Land - County of Hawaii) to a point; 4. 2660 28' 187.31 feet alone Lot 3 (Government Land - County of Hawaii) to a point; M 5 W 7. 8. E I* t Thence, for the next eleven (11) courses following along middle of stonewall: 4° 59' 157.50 feet along Lots 22 and 21 of Keekee 02' Estates (File Plan 2087) and along the 800 remainder of Grant 977 to Panaunau to a 12. point; 170 24' 30" 102.93 feet along Lots 21 and 20 of Keekee 79" Estates (File Plan 2087) and along the 14. remainder of Grant 977 to Panaunau to a 38' point; 70 45' 30" 174.98 feet along Lots 20 and 19 of Keekee 16. Estates (File Plan 2087) and along the 55' remainder of Grant 977 to Panaunau to a point; 910 17' 30" 56.46 feet along Lot 18 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 355° 54' 30" 333.18 feet along Lots 18 and 17 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; Thence, for the next four (4) courses following along Grant 866 to Kapule: 10. 860 02' 11. 800 19' 12. 750 14' 13. 79" 02' 14. 177° 38' 15. 750 14' 16. 1500 55' 17. 251 • 45' 30" 309.93 feet along Lot 2 to a point; 207.35 feet along Lot 1 to a point; 183.86 feet along Lot 1 to a point; 674.13 feet along Lot 1 to a point; 634.16 feet along the remainder.of Grant 977 to Panaunau to a point; 1,338.05 feet along Grant 977 to Panaunau to a point; 956.00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 902.30 feet along Grant 865 to John Nakookoo to a point; -12- Thence, for the next thirty-six (36) courses following along middle of stonewall and along Grant 865 to John Nakookoo: 18. 2500 02' 30" 41.72 feet to a point; 19. 2380 11' 30" 99.82 feet to a point; 20. 246° 13' 93.37 feet to a point; 21. 253* 29' 121.82 feet to a point; 22. 2571, 51' 121.61 feet to a point; 23. 249° 33' 59.76 feet to a point; 24. 2450 51' 177.23 feet to a point; 25. 248° 02' 30" 92.17 feet to a point; 26. 240° 26' 30" 60.37 feet to a point; 27. 2540 58' 110.46 feet to a point; 28. 2580 29' 24.30 feet to a point; 29. 2740 56' 30" 31.91 feet to a point; 30. 2600 18' 30" 148.31 feet to a point; 31. 253° 43' 47.09 feet to a point; 32. 2430 21' 30" 89.60 feet to a point; 33. 2636 53' 30" 70.49 feet to a point; 34. 2540 39' 30" 21.88 feet to a point; 35. 2690 41' 41.10 feet to a point; 36. 2880 24' 45.97 feet to a point; 37. 2550 29' 30" 27.38 feet to a point; 38. 2410 21' 30.35 feet to a point; 39. 2276 12' 30" 53.91 feet to a point: 40. 216' 24' 30" 55.73 feet to a point: 4 l . 238" 55' 30" 27.24 feet to a point: -12- 42. 255 ° 23' 30 29.74 feet to a point; 43. 2710 22' 69.73 feet to a point; 44. 265 ° 04' 29.52 feet to a point; 45. 2750 29' 30"' 98.69 feet to a point; 46. 2710 04' 85.71 feet to a point; 47. 277 42' 30" 71.32 feet to a point; 48. 2690 46' 21.84 feet to a point; 49. 270° 48' 110.24 feet to a point; 50. 2680 22' 91.02 feet to a point; 51. 2580 19' 92.53 feet to a point; 52. 2700 26' 57.58 feet to a point; 53. 2650 38' 177.70 feet to the point of beginning and containing an area of 94.387 Acres, more or less. (Refer to Pacel 3 as shown on Exhibit "A".) The district classification of the following area situated at Halekii, Keekee 1 st and 2nd, Ilikahi, Kanakau 1st and 2nd, Kalukalu 1st, 2nd, and 3rd and Onouli 1st, South Kona, Hawaii, shall be Agricultural (A-1 a): PARCEL 4: Beginning at the Southeasterly corner of this parcel of land, being also a point on the Northerly boundary of Grant 1162 to F. O. Schulze, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 4,046.78 feet South and 6,502.93 feet East and running by azimuths measured clockwise from True South: 1. 65o 45' S4" 1,071.96 feet along middle of stonewall. and along Grant 1162 to F. O. Schulze to a point; 2. 780 08' 30" 1,407.43 feet along middle of stonewall and along Grant 1162 to F. O. Schulze to a point; Thence, for the next three (3) courses following along the remainder of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole: -13- 3. 203" IT 488.09 feet to a point; Thence, following on a curve 'to the left with a radius of 870.00 feet, the chord azimuth and distance being: 4. 1720 50' 30" 879.41 feet to a point; 5. 142" 29' 272.49 feet to a point; Thence, following along the remainders of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole, Grant 1160 to H. N. Greenwell, and Grant 1576 to Lohi on a curve to the right with a radius of 1,130.00 feet, the chord azimuth and distance being: 6. 1690 47' 1,036.55 feet to a point; 7. 1970 05' 307.17 feet along the remainders of Grant 1576 to Lohi and Grant 1464 to Ialua to a point; Thence, following along the remainder of Grant 1464 to Ialua on a curve to the left with a radius of 645.00 feet, the chord azimuth and distance being: 8. 183 ° 07' 311.35 feet to a point; 9. 1690 09' 54.98 feet along the remainder of Grant 1464 to lalua to a point; Thence, following along the remainders of Grant 1464 to Ialua and Grant 1175 to Nakauwaa on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 10. 186° 06' 411.07 feet to a point; H. . 203 ° 03' 162.63 feet along the remainder of Grant 1 175 to Nakauwaa to a point; Thence. following along the remainder of Grant 1 175 to Nakauwaa and Grant 1 177 to Kamak-ahiona on a curve to the left, with a radius of 645.00 feet. the chord azimuth and distance beinc: 12. 1860 42' 30" 362.96 feet to a point; -14- 13. 170° 22' 60.05 feet along the remainder of Grant 1 177 to Kamakahiona to a point; Thence, following along the remainders of Grant 1177 to Kamakahiona and Grant 1176 to Kini on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 14. 1860 12' 384.70 feet to a point; Thence, for the next five (5) courses following along the remainder of Grant 1176 to Kini: 15. 2020 02' 35.26 feet to a point; Thence, following on a curve to the left with a radius of 30.00 feet, the chord azimuth and distance being: 16. 1570 02' 42.43 feet to a point; 17. 1120 02' 85.32 feet to a point; Thence, following on a curve to the left with a radius of 645.00 feet, the chord azimuth and distance being: 18. 970 14' 329.53 feet to a point; 19. 820 26' 397.26 feet to a point; Thence, following along the remainders of Grant 1176 to Kini and Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 20. 118' 34' 831.43 feet to a point; 21. 1540 42' 342.97 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 22. 252° 13' 704.78 feet along Grant 1587 to John Peters and Grant 865 to John Nakookoo to a point; -15- Thence, for the next three (3) courses following along Grant 865 to M John Nakookoo: '23). 257° 00' 987.00 feet to a point; 24. 2590 26' 602.00 feet to a point; 25. .2440 12' 628.00 feet to a point; 26. 3300 55' 956.00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 27. 2550 14' 1,338.05 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 28. 357° 38' 634.16 feet along Grant 977 to Panaunau to a point; 29. 760 40' 30" 1,596.74 feet along Grant 1177 to Kamakahiona to a point; 30. 760 40' 30" 44.81 feet along Grant 1177 to Kamakahiona to a point;. Thence, for the next six (6) courses following along the Westerly side of old railroad: 3l . 353° 25' 54.23 feet to a point; 32. 346° 06' 95.32 feet to a point; 33. 342° 16' 30" 289.54 feet to a point; 34. 341 ° 04' 132.29 feet to a point; 35. 3450 33 48.71 feet along the remainders of Grant 1 177 to Kamakahiona and Grant 1 l 75 to Nakauwaa to a point; _ Thence. for the next six (6) courses following along the remainder of Grant 1 175 to Nakauwaa: 36. 3500 55' 30" 47.80 feet to a point; M 37. 260° 45' 5.34 feet to a point; Thence, for the next four (4) courses following along the Westerly face of stonewall and along the Easterly side of old railroad: 38. 353 ° 43' 30" 58.69 feet to a point; 39. 1t4 30" 50.75 feet to a point; 40. 4- 06' 30" 32.09 feet to a point; 41. 90 18' 30" 46.75 feet to a point; Thence, for the next four (4) courses following along the Northerly face of stonewall: 42. 79° 50' 28.51 feet along Grant 787 to H. N. Green%vell to a point; 43. 63 ° 01' 30" 205.62 feet along Grant 787 to H. N. Greenwell to a point; Thence, for the next twenty-six (26) courses following along the remainder of Grant 787 to H. N. Greenwell: 44. 58° 15' 190.84 feet to a point; 45. 950 12' 30" 36.26 feet to a point; Thence, for the next ten (10) courses following along the Westerly face of stonewall: 46. 3400 55' 30" 51.47 feet to a point; 47. 3360 12' 30" 95.40 feet to a point; 48. 3400 54' 85.38 feet to a point; 49. 3380 48' 30" 46.81 feet to a point; 50. 3420 23' 65.75 feet to a point; 51. 334° 35' 30" 65.95 feet to a point; 52. 332° 23' 82.87 feet to a point; 53. 3240 00' 11.13 feet to a point; 54. 3320 36' 30" 113.50 feet to a point; -17- 55. 347° 43' 24.68 feet to a point; Thence, for the next four (4) courses following along the Westerly side of old railroad: 56. 3380 19' 61.45 feet to a point; 57. 3270 39' 30" 17.91 feet to a point; 58. 3471, 16' 94.25 feet to a point; 59. 3440 55' 30" 113.58 feet to a point; 60. 2670 05' 30" 16.83 feet to a point; Thence, for the next six (6) courses following along middle of stonewall: 61. 3410 48' 30" 54.25 feet to a point; 62. 3460 24' 30" 109.52 feet to a point; 63. 3300 20' 62.30 feet to a point; 64. 3360 48' 111.89 feet to a point; 65. 3250 21' 106.90 feet to a point; 66. 620 18' 30" 29.22 feet to a point; Thence, for the next three (3) courses following along Westerly face of stonewall: 67. 3370 28' 30" 112.46 feet to a point; 68. 337° 08' 183.98 feet to a point; 69. 3371 36' 30" 153.52 feet to a point; 70. 2540 02' 30" 25.45 feet along the Southerly face of stonewall and along Grant 787 to H. N. Greenwell to a point: Thence. for the next seven (7) courses. following along the Westerly side of old railroad and along the remainder of Royal Patents 4386 and 7146. Land Commission Award 8452 to A. Keohokalole: 71. 338' 26' 168.87 feet to a point; 72. 33370 34' 153.12 feet to a point; -18- 73. 335° 16' 30" 329.74 feet to a point; 74. 336° 16' 30" 122-.94 feet to a point; 75. 334 ° 38' 30" 193.93 feet to a point; 76. 3350 59' 267.46 feet to a point; 77. 329° 13' 30" 141.50 feet to the point of beginning and containing an area of 271.415 Acres. (Refer to Parcel 4 as shown on Exhibit "A".) All as shown on the map attached hereto, marked Exhibit "A" and by reference made.a part hereof (herein after referred to as "subject property"). SECTION 3. These changes in district classification are conditioned upon the following: (A) The applicant, successors or assigns shall be responsible for complying with all of the stated conditions of approval; (B) The effective date of the rezoning shall be upon: (1) the execution of an agreement, between the applicant, Lyle Anderson, and the County through its Department of Water Supply and Planning, to assign water commitment rights in the Kealakekua Source Agreement to the current landowners of the subject property within one -hundred -eighty (180) days from the effective date of this ordinance; provided that a maximum ninety (90) day extension may be granted by the Planning Director with reasonable and sufficient justification; and (2) the acceptance by the Department of Water Supply of the required water commitment payment in accordance with its "Water Commitment Policy" within one -hundred -eighty (180) days from the effective date of this ordinance; (C) Subdivision plans for any portion of the subject property shall be submitted to the Planning Department and Tentative Subdivision Approval secured within four (4) years from the effective date of this rezoning as determined in Condition B; Final Subdivision Approval shall be secured within five (5) years from the effective date of this rezoning as determined in Condition B. For the purpose of this ordinance, -19 Final Subdivision Approval shall be defined as the subdivision of any agricultural zoned lot to a lot less than twenty (20) acres in size within the subject property; (D) A wastewater disposal system shall constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works, whichever is applicable; (E) All electrical and communication utilities lines within the subject property shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site; (F) A Flood Study of the subject property shall be submitted to the Planning Department in conjunction with plans submitted for subdivision review for any portion of the subject property. Drainage improvements shall be constructed in a manner meeting with the approval of the Department of Public Works, prior to the issuance of Final Subdivision Approval for the subject property; (G) An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources -Historic Preservation Division, prior to submitting plans for subdivision review. The Plan shall consist of three subplans (1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim protection/preservation plan for the sites to undergo preservation, and (3) an interpretation plan which shall include buffer zones. signage and long-range preservation concerns which may be submitted at a later date. Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the subject property; final comprehensive -public access plan, to • ' developed ! consultation communitv groups. shall be submitted to and approved by the Planni ect r1or -20- to final subdivision approval or any land alteration activity, whichevercome-, first The final comprehensive public access plan shall be developers in consultation with the Planning Director and the Department of Land and Natural Resources an shalt include mauka-makai and lateral shoreline accesses. parking area(s). signage - emergency response considerations, restrictions on use (if aryl. nrovisinr, �f recreational and restroom facilities at appropriate locations. and related improvements [The applicant shall be responsible to comply with Condition No. 8 of SMA Pen -nit No. 345 issued to the applicant on November 5, 1993]; provided, that the construction of the coastline park and access ways shall be subject to the obtaining of all necessary discretionary permits (e.g., Conservation District Use Approval, Special Management Area Use Permit, etc.); provided, further, that the applicant shall be responsible to comply with the following terms and conditions: [(1) The applicant shall develop and submit a comprehensive public shoreline access plan for the subject property and.the properties described in the SMA Permit No. 345, subject to the review and approval by the Planning Director, in consultation with the Department of Land and Natural Resources, prior to Final Subdivision Approval, or any land alteration activity, whichever comes first;) UJ[(2)] An area comprising twenty-five percent (25%) of the total park area, as shown on Exhibit "E" attached hereto and made a part hereof, shall be developed and improved by the applicant or its agent in phases within five (5) years from the date Final Subdivision Approval is obtained on the subject property. The first phase shall be completed and open to the public within thirty (30) days following the opening of the golf course; [(3) No more than a total land area of twelve (12) acres shall be permitted to be constructed, operated and maintained as part of the applicant's golf course, approved as Use Permit No. 115, and included within the coastline park or the existing conservation district lands;] [A] Upnn opening the first phase of the park area. a minimum of twenty-five (25) public parking stalls in addition to parking stalls for residents, guests, and employees within the subject property and the applicant's adjacent lands at the -21- principal shoreline access parking area(s), signage and provisions for public access for night fishing and marine food gathering purposes over designated vehicular and pedestrian access routes subject to restrictions which limit said uses to recreation uses only, and other restrictions which provide for the health and safety of the general public and residents alike. The number of parking stalls shall be increased commensurately with the approval of additional park %1[(5)] The public shoreline access plan shall also integrate where appropriate, any public accessway(s) to interpretive trail systems) and to the historical and archaeological sites to be approved by the Planning Director, in consultation with the Department of Land and Natural Resources in conjunction with the detail mitigation plan for the park area situated in the Conservation district. (1) Prior to final approval of a small lot subdivision plat within the subject property, the applicant shall convey to the County of Hawaii by way of a perpetual easement the right to public access and recreational use of [the] its privately owned coastline park and trails; provided, that restrictions [in accordance with Chapter 115, Hawaii Revised Statutes,] will be allowed to be established by the applicant, subject to the approval of the Planning Director, to promote public health and safety and the general security of the premises for residents and guest of the project to protect the area's pristine condition, and to minimize any liability to the applicant, pursuant to Chapter 520, Section 520-4, Hawaii Revised Statutes. The applicant shall retain ownership of its [oven the] coastline park and trails in fee simple and maintain all lands in the coastline park area and operate such facility for public recreational use in accordance with the above terms and conditions. This condition shall not be applicable to any road-,vay. trail or other rights-of-way. which are deemed public highways or trails as defined in Chapter 264, Hawaii Revised Statutes; (J) Should any unidentified sites or remains such as artifacts, shell, bone, or charcoal deposits. human burials. rock or coral alignments, pavings or walls be encountered. work in the immediate area shall cease and the Planning Director shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken: -22- (K) A solid waste management plan shall be prepared meeting with the approval of the Department of Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the subject property. Approved recommendations and mitigation measures shall be implemented at a time and in a manner meeting with the approval of the Department of Public Works; .(L) Roadway improvements and access(es) to the subject property, including all plans and construction, shall meet with the approval of the Department of Public Works. Prior to the issuance of Final Subdivision Approval for any portion of the subject property, the applicant shall: (1) construct the channelization and signalization of the Mamalahoa Highway- Haleki'i Street intersection; (2) determine the final right-of-way alignment of the entire Mamalahoa Highway Bypass [road as shown in Exhibit "C"J between the arctroximate vicinity of Keauhou and Captain Cook, including its intersection areas and its acquired ownership or control. The applicant shall provide the Planning Director with a metes and bounds description of each road right-of-way segment involved and evidence of its ownership or control as deemed necessary by the Planning Director. In lieu of the applicant obtaining or acquiring ownership or control of any segment [within the Phase Two portion] of the Mamalahoa Highway Bypass [road], the requirement shall be deemed, fulfilled upon the county's formal initiation of condemnation action for such segments and an agreement has been entered into (to) between the applicant and the county providing for the applicant's reimbursement to the county for the acquisition of the lands condemned; . (3) construct (Phase One on the Mamalahoa Highway Bypass [as shown in CaptainExhibit "C"J in its entirely between the approximate vicinity of Keauhou and Cook, consisting of two lanes with sufficient right-of-way for a total of four lanes ided further that the section of the Mamalahoa Highway Bypass between Keauhou and Haleki'i Street shall be completed -a v -23- MOM FTsTrEM111MIMMIM111 [(4) construct the channelization improvements on Kuakini Highway at its intersection with the north end of the Mamalahoa Bypass;J L1 [(5)) construct the extension of Haleki'i Street through the subject property as generally reflected in Exhibit `B', which phasing of improvements shall be approved by the Department of Public Works. [A) If. before the -co 1 tion and opening of the entire Mamalahoa Highway Bypass a portion of Said bypass is completed and opened. and saido�on provides a connection to Haleki'i Street. a barricade or breakaway gate, meeting with the requirements of the Department of Public Works, shall be installed by the applicant as pan of the required Haleki.`i Street improvements. [prior to the completion of Phase I of the Mamalahoa Highway Bypass or the construction of any dwelling unit or golf course clubhouse facility, whichever occurs first.) The purpose of this condition is to prevent the use of Haleki'i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and a po, rtion [the Phase 1 section ]of the Mamalahoa Highway Bypass until the entire proposed Mamalahoa Highway Bypass between the al2nroximate vicinity of Keauhou and C212tain Cook has been completed and opened for general public use; and provide roadway stub -outs, generally shown in Exhibit "B', to provide future connections between the subject property, [the Alii Highway, and southern extensions there from;] and the adjacent properties to the north and south: provided that such stub -outs shall be constructed in accordance with the construction phasing as approved by the Department of Public Works. The applicant shall construct the Mamalahoa HighwaX Bypass to [State Department of Transportation -Highways Division Standards for a regional arterial bypass highway or segments thereof, and) standards set forth by the Department of Public Works for Alii Highwav with such modifications as may be deemed necessary by the Department of Public Works. Thea applicant shall provide a landscape buffer along highway sections within five hundred feet of existing dwellings , as required by the chief engineer, to -24- reduce the impacts of noise and light on the residents therein and to generally beautify' the highway appearance in such locations[. Roadway segments providing the bypass's connection with the existing highways at its north termini shall be built to county dedicable standards for secondary arterials, pursuant to Chapter 23 of the Hawaii County Code, instead of the State DOT standards for major arterials, in the case where the roadway segment is consistent with a Department of Transportation plan which provides for such segments to be a lesser, connector road and for the later extension of the arterial bypass highway to be substantially further north or south before merging with other arterial roadways]; provided that the applicant shall enter into a reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction, land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom the county may determine as benefiting from the Mamalahoa Highway Bypass [Highway] and which funds are available to the county for such purpose; and provided further, that the total amount of reimbursement due to the applicant shall not exceed the total cost of land acquisition, design and construction of the Mamalahoa Highway Bypass [Highway] incurred by the applicant, less the pro rata portion attributed to the subject property; [(M) Prior to Final Subdivision Approval of any portion within Area 2 as shown in Exhibit. "D" except for the golf course, golf clubhouse, lodge and related facilities, the applicant shall: (1) complete the construction of the Phase Two of the Mamalahoa Bypass consisting of two lanes with sufficient right-of-way for a total of four lanes as shown in Exhibit "C", meeting with the approval of the Department of Public Works, in consultation with the State Department of Transportation -Highways Division; and (2) complete the construction of the Mamalahoa Bypass channelization improvements at its intersection with Mamalahoa Highway and Napo'opo'o Road, meeting with the requirements of the Department of Public Works, in consultation with the State Department of Transportation -Highways Division;) -25- LW[(N)] All roadway improvements stated in Condition L [and M] of this ordinance shall be dedicated to the [appropriate government entity. Those improvements associated with the Mamalahoa Highway Bypass shall by offered to the State Director of Transportation pursuant to Section 264-1 of the Hawaii Revised Statutes. Any connector roadways, and any portion of the Mamalahoa Highway Bypass not accepted by the State Director of Transportation shall be dedicated to the County, as provided by law] County of Hawaii; MO)) To ensure that the Goals and Policies of the Recreational Element of the General Plan are implemented, the applicant shall provide [a maximum of] two acres of land abutting the north side of Kona Scenic Park for public purposes prior to Final Subdivision Approval of the subject property. (Q*P)] In lieu of actual construction of infrastructural improvements as required under Conditions D, F, H, K, and L.[and M,] the applicant may enter into an agreement with the Planning Director to assure the county that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable to the Planning Director and the Corporation Counsel. Upon execution of such agreement and/or filing of the security with the County, Final Subdivision approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements; [(Q) The Applicant shall participate in the funding and construction of any regional roadway improvements as may be required by the State Department of Transportation, provided that any costs borne by the applicant shall be credited and limited to the amount of its fair share contribution for regional road and traffic impacts, as required in Conditions L and M]; Tj[(R)] It shall be demonstrated to the satisfaction of the Planning Director that agricultural activity is being conducted on the subdivided lots within three years from the date of Final Subdivision Approval. For the purposed of this condition. "agriculture" shall be defined as the cultivation of crops. including but not limited to flowers, vegetable. foliage. and fruits that are propagated for economic or personal use. An agricultural activity will be considered satisfactorv: -26- (1) if such activity is implementing a conservation program for the affected property(ies), as approved by the applicable soil and water conservation district directors and filed with the Soil Conservation Service; (2) if it provides a source of income to the person(s) who reside on the propert}•; or (3) if the property is dedicated for agriculture uses in accordance with applicable Tax Department procedures and that such agriculture dedication shall be made a deed covenant and duly recorded with the State "Bureau of Conveyances and a copy of the recorded deeds shall be filed with the Planning Department within one year from the date of Final Subdivision Approval. Each approved lot must comply with at least one of the above requirements to satisfy the conditions of approval of this ordinance; LQWS)] Restrictive covenants in the deeds of all the proposed lots shall prohibit the construction of a second dwelling unit on each lot; provided that this shall not preclude the construction of a guest house as defined under Chapter 25 of the Hawaii County Code. A copy of the proposed covenant(s) to be recorded with the Bureau of Conveyances shall be submitted to the PIanning Department for review and approval prior to final subdivision approval. A copy of the approved covenant shall be recited in an instrument executed by the applicant and the county and recorded with the Bureau of Conveyances likewise prior to final subdivision approval; (The Applicant shall pay its fair share contribution to address potential regional impacts of the subject property with respect to park, fire, police, solid waste disposal facilities, sewer and roads. The fair share contribution shall be initially based on the representations contained within the change of zone application and may be increased or reduced proportionally if the agricultural lot counts are adjusted. The fair share contributions described below shall be adjusted annually based on the percentage change in the Honolulu Consumer Price Index (HCPI). The fair share contribution for each agricultural zoned lot of the subject property less than ten acres in size shall be based on a maximum density for each lot as determined by the zoning resulting from this change of zone. The fair share contribution in a form of cash, land, facilities, or -27' any combination thereof shall have a maximum combined value of S 4,701,205.74. In lieu of paying the fair share contribution, the applicant may construct such improvements/facilities related to park, fire, police, solid waste disposal facilities, sewers and roads with the approval of the appropriate agency(ies). Any contributions required by this ordinance that exceed the fair share requirement of this proposed development shall, at the applicant's request be credited towards any of the applicant's future developments that require infrastructural impact contributions; ) impactsThe applicant shall make its fair share contribution tj2 mitigate the Dolential regional of 1e subJect prop&rly with respect to parks and r creation—fire. police.• • waste disnosal facilities, and roads, The amgunt of the fair share contribution the sum which is the product of muhiplying the number of lots 12rol2osed to be subdivided • 1 'amounts all• • hereinbelow f• 1 such lot, and shall become due and •. • • • to final subdivision approval f• any • • l • 1 of -the suhiect • ••"M or 1 11'1ts, If the subiect/ 11 M is subdivided in 1 or more increments- the amount of the fair share contribution due and 12aYable-12rior to final subdivision • • t of 1 increment shall• " a sum calculated in the same manner according to the number of additional • ••• • 1 each such increment, T1" fair sharg contribution for -each lot, exceptfor •ts larger than ten acres in-sizeor / 1 arc commined exclusively for golf course and Mrk 12urpQses. shall he based on the maximum allowable density of building determined • 1 " zoning of 1 lot. The fair share•1 • •1 in a form gf cash,1• or any •ll • /• •! thereof, .. to the—director iI cgnsultation with the affected aizencies shall have • t!•. 11 t! combined value of ' 12er lot, Based -upon t •• calculationion of intent to subdivide and develop up to 400 -lots, the indi6ated total fai share contribution is 52,895.664.00, however. the total amount shall br, increased 0 reduced in vith the actual number of subdivided lots accordin2 to the and payment provisions set f•ll in this Condilion • The fair share contribution shall be • • as follows: •••� •. ,�••t. 1MER", -28- • r • • .• 1• • •MIT 1 11 • 1 • 1� • •••■ S3,101.68 •!:r lot. for.1 indicated total of • 1 672.00 to the State • • t tv to suppon road •1• traffic improvements. The fair share contribultions described aboveshall be ad-justed annually beginnint, three years after the effective date of this ord nce. ased on the percent changein the Honolulu Consumer Price.Index. ' 1 lieu•f payin-2 theshare contribution, the applicant may construct11 • • 11 1 • to parks and. recreation. Wlice. solid waste disposaland • • . • 1 1 the region impactedby 1 propgsed development.• • the approvalof t planning director,The • of •1 l 1g the improvements. _ • in Conditions H. . and L shall be credited against the sum sMcified in Condition R(l) for parks •1 recreation. •1• •i ► for • • waste facilities- and in Condition for • . • and i 11 • • 11 - 1 For purposes of • It 1 -.1 • Condition : the value • :1• contributed or 1e cost of t 11 • • 11ients required or made 1 lieu of 1 share•I • •1 shall be such amount approved by i" Planning Direct• ••1 consultation with the appropriateagencies. [(U) The Applicant shall conform, to the best extent practicable, with the guidelines as provided within the Strategies for Energy Efficient Architecture by Hawaiian Design and the State Model Energy Code, in the construction of dwellings within the subject property; ) M[(T)] In the event that the State Department of Education adopts an educational facilities impact fee program, the applicant shall participate in the requirements of the program; -29- LD[(W)) Comply with all applicable laws, rules, regulations and requirements, including those of the Department of Health, Fire, and the Department of Water Supply; MRX)j Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance; (V)[(Y)) An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone. The report shall address in detail the status of the development and the compliance with the conditions of approval. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required; and, Mr)[(Z)] An extension of time for the performance of conditions within the ordinance, with the exception of Condition C, may be granted by the Planning Director upon the following circumstances: (1) the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, and that are not the result of their fault or negligence; (2) granting of the time extension would not be contrary to the General Plan or Zoning Code; (3) granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; (4) the time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year); and -30- (5) should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant's request to the County Council for appropriate action. Further, should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate rezoning of the area to its original or more appropriate designation." SECTION 2. In the event that any portion of the ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 3. This ordinance shall take effect upon its approval. lawaii fIntroduction: December 15, 1995 -f 1st Reading: December 15, 1995 f 2nd Reading: January -3, 1996 ive Date: January 15, 1996 APPROVED as to Fr', :LM cru GAi17Y CORPO!ZATIC-IN COUNSEL ` COUNTY Or HAWAII Date. INTRODUCED BY: COUNCIL MEMBER, COUNTY OF H41VAII -3.1- 1 + 111 i 3 a t t i •. t' it•t i 1�+ .. j 1 1 1 _ •� _I ��j�l j i •,• .• cam..•• ,� w Htu co 1 � 1 .; / . , K _ `_ 11•• ter'-= - -:w / , I �"• /• w N W tt ' • • •r 41 N••i 1 • 1 1 3 11 •1111 111 } r ' 1 ; f w, ly • •� 11•i•••• 1,11 t / IK X1,1; 4/,'1, �/ www .' M �if •�}i} i/ �i�/• • ' �' •�' / I • - M -• i 1 11 •` _w -- _ er :: • 1 •r 1 N•• • •.IIW I'M re 11 / IYI t tl/l tit t • �, • • iw4 ..� i• / / �� tl3i/alt' � � okg I ; _ ujoj� LLJ co t cn ui to /• . \'. ��. i \ . �.-.-.j.�'�♦ "� _ � ='4' 1' ��'� �.� ' - �"j.a'"•— / ---444 -� Y LA 14 ti ui � . _,. .. Wil_ {r :i •.1 .I�, � X Y � :.��'11�' � )/15�.%: � '/ �1%�'� lac; �• _ � ,, ' ��.•�.`� ' � :�` � S •�•i � /�';• ��W %' .,:.i.,� � � j• •� � �_ ; � W 1.11' ;r• � :. - •� �'� ~ • is , , j � �r �• , al •� / t o • OFFICE OF THE COUNTY CLERK County of Hawaii Hilo Hamaii RE If"I '- ' .' - Introduced By: Takashi Daningo Date Introduced: December 15, 1995 First Reading: December 15 1995 Published: N/A REMARKS: Second Reading: January 3, 1996 To Mayor: January 4. 1996 Returned: January 16, 1996 Effective: January 15, 1996 Published January 24, 1996 REMARKS: (DW" X16 fill 7 57 ,r r" f I C E ' =ROLL CA [�-L( j�'QTE C C ll Ii T f G,kYtS I NOES ABS EX Arakaki X Bonk -Abramson Bonk•Abrarnson Gilds X Childs X Domingo . De Lima X X Domingo X Ray Osorio X - X Rath 7 2 0 0 X Ray X Smith X 7 2 0 0 ( DRAFT 6 ) I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as indicated above. COUNCIL CHAIRMAN COUNTY CLERK Approved aftvrT a -s- this day Of 19�• _ A OR COUNTY Ai! Bill No- 181 (Draf t 6 Referencc C- 8 21 PC- 91 Ord- No. 96 8 ROLL CALL VOTE AYES NOES ABS EX Arakaki X Bonk -Abramson X Gilds X De Lima X Domingo . X Osorio X Rath X Ray X Smith X 7 2 0 0 I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as indicated above. COUNCIL CHAIRMAN COUNTY CLERK Approved aftvrT a -s- this day Of 19�• _ A OR COUNTY Ai! Bill No- 181 (Draf t 6 Referencc C- 8 21 PC- 91 Ord- No. 96 8 0 • COUNTY OF HAWAII STATE OF HAWAII BILL NO. 158 (Draft s) ORDINANCE NO. 96 7 AN ORDINANCE AMENDING SECTION 25-87 (NORTH KONA ZONE MAP), AND SEC.ICN 25-88 (SOUTH KONA ZONE MAP), ARTICLE 3, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE, BY CHANGING THE DISTRICT CLASSIFICATION FROM UNPLANNED (U) TO AGRICULTURAL (A -la) AT HONUAINO 3RD AND 4TH, HOKUKANO IST AND 2ND, HALEKII, KEEKEE 1ST AND 2ND, ILIKAHI, KANAKAU 1ST AND 2ND,. KALUKALU 1ST, 2ND AND 3RD AND ONOULI 1ST, NORTH AND SOUTH KONA, HAWAII, COVERED BY TAX MAP KEY 7-9-12:4, 11 AND PORTION OF 3 AND 8-1-4:PORTION OF 3. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Section 25-87, Article 3, Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of property described hereinafter as follows: The district classification of the following area situated at Honuaino 3rd and 4th, Hokukano 1st and 2nd and Kanueue 1st and 2nd, North Kona, Hawaii shall be Agricultural (A -la) : PARCEL 1: Beginning at the Northeasterly corner of this parcel of land, being also an angle point on the Southerly boundary of Royal Patent 1098, Land Commission Award 614 to Charles Hall, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU", being 5,408.20 feet North and 934.23 feet East and running by azimuths measured clockwise. from True South: 1. 3450 15' 189.91 feet along Grant 2029 to S. W. Makahiki to a point: Thence, following along the remainder of Grant 2029 to S. W. Makahiki on a curve to the right with a radius of 470.00 feet, the chord azimuth and distance being: EXHIBIT 2. 3160 23' 15" 424.98 feet to a point; 3. 3430 16' 839.35 feet along the remainders of Grant 2029 to S. W. Makahiki, Grant 1453 to John Cavanah and Grant 1463 to Keawe to a point.- Thence, oint;Thence, following along the remainder of Grant 1463 to Keawe on a curve to the left with a radius of 1030.00 feet, the chord azimuth and distance being: 4. 3290 59' 30" 473.03 feet to a point; 5. 3160 43' 68.92 feet along the remainder of Grant 1463 to Keawe to a point; Thence, following along the remainder of Grant 1463 to Keawe and Grant 1587 to John Peters on a curve to the right with a radius of 1270.00 feet, the chord azimuth and distance being: 6. 3450 33' 1224.95 feet to a point; 7. 1410 23' 350.20 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainder of Grant 1587 to John Peters on a curve to the left with a radius of 1030.00 feet, the chord azimuth and distance being: 8. 3540 32' 30" 699.21 feet to a point; 9. 334° 42' 918.92 feet along the remainder of Grant 1587 to John Peters to a point; Thence, for the next three (3) courses following along Royal Patent 1670 to John. D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to the American Board of Commissioners for Foreign Missions: -2- -3- • 10. 660 00' 770.00 feet to a point; 11. 740 30' 930.00 feet to a point; 12. 670 00' 285.65 feet to a point; Thence, for the next twenty-one (21) courses following along the remainder of Grant 1651 to Charles Hall: 13. 1790 00' 416.28 feet to a point; 14. 1490 00' 221.00 feet to a point; 15. 526 00' 205.00 'feet to a point; 16. 670 00' 304.0.0 feet to a point; 17. 800 00' 573.00 feet to a point; 18. 1020 00' 259.00 feet to a point; 19. 1360 00' 441.00 feet to a point; 20. 1200 00' 641.00 feet to a point; 21. 1370 00' 256.00 feet to a point; 22. 1680 20' 1123.00 feet to a point; 23. 1630 30' 456.00 feet to a point; 24. 2060 00' 214.09 feet to a point; 25. 2430 00' 693.46 feet to a point; 26. 1930 00' 282.00 feet to a point; 27. 2220 00' 513.00 feet to a point; 28. 2100 19' 324.00 feet to a point; 29. 1980 00' 497.68 feet to a point; 30. 1810 00' 307.60 feet to a point; 31. 2580 00' 140.74 feet to a point; 32. 1880 49' 30" 106.80 feet to a point; 33. 1700 53' 443.95 feet to a point; -3- 34. 2680 39' 20.00 feet along Honalo-Kainaliu Beach Road; Thence, for the next four (4) courses following along middle of stonewall and along Land Commission Award 3659 to J. Martin: 35. 2720 51' 57.35 feet to a point; 36. 2670 36' 189.05 feet to a point; 37. 2690 43' 203.15 feet to a point; 38. 2750 15' 223:35 feet to a point; Thence, for the next three (3) courses following along middle of stonewall and along Royal Patent 1098, Land Commission Award 614 to Charles Hall: 39. 2680 14' 434.20 feet to a point; 40. 2750 04' 236.30 feet to a point; 41. 2620 13' 206.40 feet to the point of beginning and containing an area of 383.952 Acres, more or less. (Refer to Parcel 1 as shown on Exhibit "A")., SECTION 2. Section 25-88, Article 3, Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district. classification of property described hereinafter as follows: The district classification of the following area situated at Halekii, Keekee ist and 2nd, Ilikahi, Kanakau 1st and 2nd, Kalukalu 1st, 2nd and 3rd and Onouli 1st, South Kona, Hawaii, shall be Agricultural (A -1a): MC PARCEL 2: Beginning at the Northeasterly corner of this parcel of land, being also an angle point on the Southerly boundary of Grant 1587 to John Peters, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PU'J OF -AU", being 601.01 feet North and 2,479.11 feet East and :u:,n,ng by azimuths measured clockwise from True South.: 1. 3340 42' 342.98 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to the American Board of Commissioners for Foreign Missions to a point: The,ce, following along the remainders of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to the American Board of Commissioners for Foreign Missions and Grant 1176 to Kini on a curve to the left with a radius of 705.00 feet, the chord azimuth and distance being: 2. 2980 34' 831.43 feet to a point; 3. 2620 26' 397.26 feet along the remainder of Grant 1176 to Kini to a point; Thence, following along the remainder of Grant 1176 to Kini on a curve to the right with a radius of 645.00 feet, the chord azimuth and distance being: 4. 2770 14' 329.53 feet to a point; S. 2921D 02' 85.32 feet along the remainder of Grant 1176 to Kini to a point; Thence, following along .the remainder of Grant 1176 to Kini on a curve to the right with a radius of -5- 30.00 feet, the chord azimuth and distance being: 6. 3370 02, 42.43 feet to a point; 7. 220 02' 35.26 feet along the remainder of Grant 1176 to Kini to a point; Thence, following along the remainders of Grant 1176 to Kini and Grant 1177 to Kamakahiona on a curve to the left with a radius of 705.00 feet, the chord azimuth and distance being: 8. 60 12' 384.70 feet to a point; 9. 3500 22' 60.05 feet along the remainder of Grant 1177 to Kamakahiona to a point; Thence, following along the remainders of Grant 1177 to Kamakahiona and Grant 1175 to Nakauwaa on a curve to the right with a radius of 645.00 feet, the chord azimuth and distance being: 10 60 42' 30" 362.96 feet to a point; 11. 230 03' 162.63 feet along the remainder of Grant 1175 to Nakauwaa to a point; Thence, following along the remainders of Grant 1175 to Nakauwaa and Grant 1464 to Ialua along a curve to the left with a radius or 705.00 feet, the chord azimuth and distance being: 12. 60 06' 411.07 feet to a point; 13. 3490 09' 54.98 feet along the remainder of Grant 1464 to Ialua to a point; Thence, following along the remainder of Grant 1464 to Ialua on a curve to the right with a radius of 645.00 feet, the chord azimuth and distance being: -6- 14. 30 07' 311.35 feet to a point; 15. 170 05' 307.17 feet along the remainders of Grant 1464 to Ialua and Grant 1576 to Lohi to a point; Thence,'following along the remainders of Grant 1576 to Lohi, Grant 1160 to H. N. Greenwell and Royal Patents 4386 and 7146, Land Commission. Award 8452 to A. Keohokalole on a curve to the left with a radius of 1130.00 feet, the chord azimuth and distance being: 16. 3490 47' 1036.55 feet to a point; 17. 3220 29' 272.49 feet along the remainder of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole to a point; Thence, following along the remainder of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole on a curve to the right with a radius of 870.00 feet, the chord azimuth and distance being: 18. 3520 50' 30" 879.41 feet to a point; 19. 230 12' 488.09 feet along the remainder of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole to a point; Thence, following along middle of stonewall and along Grant 1162 to F. O. Shulze, the direct azimuth and distance being: 20. 780 08' 30" 958.38 feet to a point; Thence, following along middle of stonewall and along Grant 1162 to F. O. Shulze, the direct azimuth and distance being: 21. 570 14' 50" 1532.00 feet to a point; -7- Thence, for the next four (4) courses following along the remainder of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole: 22. 1600 00, 200.00 feet to a point; 23. 1490 00, 452.00 feet to a point; 24. 1600 51' 628.00 feet to a point; 25. 1520 30' 327.00 feet to a point; 26. 1820 19, 313.00 feet along the remainders of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole and Grant 1745 to John Cavanah to a point; Thence, for the next five (5) courses following along the remainder of Grant 1745 to John Cavanah: 27. 1710 27' 400.00 feet to a point; 28. 1610 20' 606.00 feet to a point; 29. 1750 16' 440.00 feet to a point; 30. 1820 42' 30" 1190.00 feet to a point; 31.. 1550 00' 489.00 feet to a point; 32. 1810 00' 353.00 feet along the remainders of Grant 1745 to John Cavanah and Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to the American Board of Commissioners for Foreign Missions to a point; 33. 1530 00' 492.00 feet along the remainder of Royal.Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to the American Board of Commissioners for Foreign Missions to a point; 34. 17911 00' 126.72 feet along the remainder of Royal Patent 1670 to John D. -8- Parish on a portion of Land Commission Award 387, Part 4, Section 2 to the American Board of Commissioners for Foreign Missions to a point; 35. 2470 00' 285.65 feet along Grant 1651 to Charles Hall to a point; 36. 2540 30' 930.00 feet along Grant 1651 to Charles Hall to a point; 37. 2460 00' 770.00 feet along Grant 1587 to John Peters to the point -of beginning and containing an area of 372.010 Acres, more or less All as shown on the map attached hereto, marked Exhibit "A" and by referencemadea part hereof herein after referred to as "subject property"). SECTION 3. These changes in district classification are conditioned upon the following: A. The applicant, successors or assigns shall be responsible for complying with all of the stated conditions of approval. B. The applicant, successors or assigns shall be responsible for complying with all requirements of Chapter 205, Hawaii Revised Statutes, relating to permissible uses within the State Land Use Agricultural District. C. The effectuation of the water commitment rights in the Kealakekua Source Agreement to the current landowners of the subject property with the acceptance of the prevailing facilities charge for the 499 units of water by the Department of water Supply 'of the required water commitment payment shall be in accordance with its "Water Commitment Policy .Prior to approval of the 500th lot within the development area, the applicant shall secure the necessary "Water Commitments" and comply with the Department of Water Supply's "Water Commitment Policy" for the remaining units of water for the proposed subdivision and golf course development. D. Subdivision plans for any portion -of the subject property for this change of zone shall be submitted to the Planning Department and Final Subdivision Approval secured within five (5) years from the effective date of this ordinance. E. A wastewater disposal system shall be constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works, whichever is applicable. F. All electrical and communication utilities and systems within the subject property shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site. G. A Flood Study of the subject property shall be submitted to the Planning Department in conjunction with plans submitted for subdivision review for any portion of the subject property. Drainage improvements shall be constructed in a manner meeting with the approval of the Department of Public Works, prior to the issuance of Final Subdivision Approval for the subject property. -10- 0 - 0 H. An archaeological"mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources -Historic Preservation Division and Hawaiian community organizations, prior to submitting plans for subdivision review. The Plan shall consist of three subplans: 1. an archaeological data recovery plan for the sites to undergo data recovery, 2. a detailed interim protection/preservation plan for the sites to undergo preservation, and 3. an interpretation plan which shall include buffer zones, signage and long-range preservation concerns which may be submitted at a later date. Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the subject property. I. Should any unidentified sites or remains such as artifacts, shell, bone, or charcoal deposits, human burials, rock or coral alignments, pavings or walls be encountered, work in the immediate area shall cease and the Planning Director shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken. J. A solid waste management plan shall be prepared meeting with the approval of the Department of -11- Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the proposed development. Approved recommendations and mitigation measures shall be implemented at a time and in a manner, meeting with the approval of the Department of Public Works. K. A final comprehensive public access plan, to be developed in consultation with community groups, shall be submitted to and approved by the Planning Director prior to final subdivision approval, or any land alteration activity, whichever comes first. The final comprehensive -public access plan shall be developed in consultation with the Planning Director and the Department of Land and Natural Resources and shall include mauka-makai and lateral shoreline accesses, parking area(s),.signage, emergency response considerations, restrictions on use (if any), provision of recreational and restroom facilities at appropriate locations, and related improvements; provided, that the construction of the coastline park and access ways shall be subject to the obtaining of all necessary discretionary permits (e.g., Conservation.District Use Approval, Special Management Area Use Permit, etc.); provided, further, that the applicant shall be responsible to comply with the following terms and conditions: 1. An.area comprising twenty-five percent (250) of the total park area, as shown on Exhibit "E" attached hereto and made a part hereof, shall be developed and improved by the applicant or its agent in phases within five (5) years from -12- the date Final Subdivision Approval is obtained on.the subject property. The first phase shall be completed and open to the public within thirty (30) days following the opening of the golf course; 2. Upon opening the first phase of the park area, a minimum of twenty-five (25) public parking stalls in addition to parking stalls for residents, guests, and employees within the subject property and the applicant's adjacent lands at the principal shoreline access parking area(s), signage and provisions for public access for night fishing and marine food gathering purposes over designated vehicular and pedestrian access routes subject to restrictions which limit said uses to recreation uses only, and other restrictions which provide for the health and safety of the general public and residents alike. The number of parking stalls shall be increased commensurately with the approval of additional park phases in accordance with the public access plan; and 3. The public shoreline access plan shall also integrate where appropriate, any public accessway(s) to interpretive trail system(s) and to the historical and archaeological sites to be approved by the Planning Director, in consultation with the Department of Land and Natural Resources in conjunction with the detail.mitigation plan for the park area situated in the Conservation district. -13- L. Prior to final approval of,a small lot subdivision plat within the subject property, the applicant shall convey to the County ofHawaiiby way of a perpetual easement the right to public access and recreational use of its privately owned coastline park and trails; provided, that restrictions will be allowed to be established by the applicant, subject to the approval of the Planning Director, to promote public health and safety and the general security of the premises for residents and guest of,the project to protect the area's pristine condition, and to minimize any liability to the applicant, pursuant to Chapter 520, Section 520-4, Hawaii Revised Statutes. The applicant shall retain ownership of its coastline park and trails in fee simple and maintain all lands in the coastline park area and operate such facility for public recreational use in accordance with the above terms and conditions. This condition shall not be applicable to any roadway, trail or other rights-of-way, which are deemed public highways or trails as defined in Chapter 264, Hawaii Revised Statutes; M. Roadway improvements and access(es) to the subject property, including all plans and construction, shall meet with the approval of the Department of Public Works. Prior to the issuance of Final Subdivision Approval for any portion of the subject property, the applicant shall: 1. construct the channelization and signalization of the Mamalahoa Highway-Halek.i,i Street intersection; -14- 2. determine the final right-of-way alignment of the entire Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook, including its intersection areas and its acquired ownership or control. The applicant shall provide the Planning Director with a metes and bounds description of each road right-of-way segment involved and evidence of its ownership or control as deemed necessary by the Planning Director. In lieu of the applicant obtaining or acquiring ownership or control of any segment of the Mamalahoa Highway Bypass the requirement shall be deemed fulfilled upon the county's formal initiation of condemnation action(s) for such segments and an agreement has been entered into between the applicant and the county providing for the applicant's reimbursement to the county for the acquisition of the lands condemned; 3. construct the Mamalahoa Highway Bypass in its entirety between the approximate vicinity of Keauhou and Captain Cook, consisting of two lanes with sufficient right-of-way for a total of four lanes, provided further, that the section of the Mamalahoa Highway Bypass between Keauhou and Haleki'i Street shall be completed and available for public use prior to the occupancy of any dwelling unit within the entire project area; 4. construct the extension of Haleki'i Street through the subject property as generally reflected in Exhibit "B°, which phasing of improvements shall be approved by the -15- Department of Public Works. If, before the completion and opening of the entire Mamalahoa Highway Bypass, a portion of said bypass is completed and opened, and said portion provides a connection to Haleki'i Street, a barricade or breakaway gate meeting with the requirements of the Department of Public Works, shall be installed by the applicant as part of the required Haleki'i Street improvements. The purpose of this condition is to prevent the use of Haleki'i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and a portion of the Mamalahoa Highway Bypass until the entire proposed Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook has been completed and opened for general public use; and 5. provide roadway stub -outs, generally shown in Exhibit 'B', to provide future connections between the subject property and the adjacent properties to the north and south; provided that such stubouts shall be constructed in accordance with the construction phasing as approved by the Department of Public Works. The applicant shall construct the Mamalahoa Highway Bypass to standards set forth by the Department of Public works for.Alii Highway with such modifications as may be deemed necessary by the Department of Public Works. The applicant shall provide a landscape buffer along highway sections within five hundred feet of existing dwellings, as required by the chief engineer, to reduce the impacts of noise and light on the residents therein -16- and to generally beautify the highway appearance in such locations; provided that the applicant shall enter into a reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction, land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom the county may determine as benefiting from the Mamalahoa Highway Bypass and which funds are available to the county for such purpose; and provided further, that the total amount of reimbursement due to the applicant shall not exceed the total cost of land acquisition, design and construction of the Mamalahoa Highway Bypass incurred by the applicant, less the pro rata portion attributed to the subject property; N. In lieu of actual construction of infrastructural improvements as required under Conditions E, G, J, K, and M, the applicant may enter into an agreement with the Planning Director and the Department of Public Works and the Department of Water Supply, if applicable, to assure the county that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable to the Planning Director and approved by the Corporation Counsel. Upon execution of such agreement and filing of the security with the county, if applicable, Final Subdivision Approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements. 17- O. The applicant shall make its fair share contribution to mitigate the potential regional impacts of the subject property with respect to parks and recreation , fire, police, solid waste disposal facilities, and roads. The amount of the fair share contribution shall be the sum which is the product of multiplying the number of lots proposed to be subdivided by the amounts allocated hereinbelow for each such lot, and shall become due and.payable prior to final subdivision approval for any portion of the subject property or its increments. If the subject property is subdivided in two or more increments, the amount of the fair share contribution due and payable prior to final subdivision approval of each increment shall be a sum calculated in.the same manner according to the number of additional proposed lots in each such increment. The fair share contribution for each lot, except for lots larger than ten acres in size or which are committed exclusively for golf course and park purposes, shall be based on the maximum allowable density of building sites as determined by the zoning of such lot. The fair share contribution in a form of cash, land, facilities, or any combination thereof acceptable to the director in consultation with the affected agencies shall have a maximum combined value of $71.239.16 per lot. Based upon the applicant's representation of intent to subdivide and develop up to 400 lots, the indicated total fair share contribution is $2,895,664.00, however, the total amount shall be increased or reduced in proportion with the actual number of subdivided lots according to the calculation and payment provisions set forth in this Condition O. -18-. The fair share contribution shall be allocated as follows• 1. $3,490.85 per lot, for an indicated total of $1,396,340.00 to the County to support park and recreational improvements and facilities; 2. $168.40 per lot, for an indicated total of $67,360.00 to the County to support police facilities; 3. $332.61 per lot, for an indicated total of $133,044.00 to t'he County to support fire facilities; 4. $145.62 per lot, for an indicated total of $58,248.00 to the County to support solid waste facilities; 5. $3,101.68 per lot, for an indicated total of $1,240,672.00 to the State or County to support road and traffic improvements. The fair share contributions described above shall be adjusted annually beginning three years after the effective date of this ordinance, based on the percentage change in the Honolulu Consumer Price Index (HOPI). In lieu of paying the fair share contribution, the applicant may construct and contribute improvements/facilities related to parks and recreation, fire, police, solid waste disposal facilities, and roads within the region impacted by the proposed development, subject to the approval of the director. The cost of constructing the improvements required in Conditions J, K and M shall -19- be credited against the sum specified in Condition O(4) for solid waste facilities, Condition O(1) for parks and recreation, and in Condition O(5) for road and traffic improvements. For purposes of administering Condition O, the value of land contributed or the cost of any improvements required or made in lieu of the fair share contribution shall be such amount as approved by the Planning Director, upon consultation with the appropriate agencies. P. Comply with all applicable laws, rules, regulations and requirements, including those of the Department of Health, Fire, State Department of Education and the Department of Water Supply. Q. Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance. R. An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone. The report shall address in detail the status of the development and the compliance with the conditions of approval. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required. -20- S. An extension of time for the performance of conditions within the ordinance, with the exception of Condition C, may be granted by the Planning Director upon the following circumstances: 1. the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, and that are not the result,of their fault or negligence; 2. granting of the time extension would not be contrary to the General Plan or Zoning Code; 3. granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; 4. the time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year); and S. should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant's request to the County Council for appropriate action. Should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate rezoning of the area to its original or more appropriate designation. -21- DEPUI SECTION 4. In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance SECTION S. This ordinance shall take effect upon its approval. INTRODUCED BY: COUNCIL MEMBER,UNTY OF HAW I Hilo, Hawaii Date of Introduction: December 15, 1995 Date of 1st Reading: December 15, 1995 Date of 2nd Reading: January 3, 1996 Effective Date: January 15, 1996 I A'; .. 'i=%:�ED cs to CC Dwe —,___: _. -22- t I 'tri � �i�lt a ;1�s= t: ,• ��. •- iii I i j t t i j.�i ST 2: i/t 1l���;. . c ' r �J•li t � � it o1{ ! f ff f� !1 ff if ♦•I I 1 w • 1• • # tf I �ifl t. w _ f• J t of �— •- �►� ..tebd t V 1 J ' I II / I• _ _:'- �� --• 1 \ I�;;� �1�1, ••)�I'V tf it W ul CD.. <f At ; . �. �... �. •; •� � � �yy�,.'� _ .. Vit' � .� gg • . bt `•' ' ..'.11.-��{ • ` t= Y� AL3 i t �y CO cc -4w -T �' is �' •�'•...� '`'\•• Vit•! ,�. � ttO}L �;;� � �'»:::�....,. N or le CD •� � �•• — „ , .,-. ���' � •�• � � Tom.: ' : V'.y •�• .(S "%"'/_>i'�/ . I' i, liRta'C5•� �Q:'JL� tlWkC i t � ,., ,t — ••--.� �,`. Introduced By: Date Introduced: First Reading: Published: REMARKS: OOFFICE OF THE COUNTY CLEO County of Hawaii Hilo Hawaii R E Takashi Domingo December 15, 1995 December 15, 1995 N/A, Second Reading: January 3, 1996 To Mayor: January 4, 1996 Returned: January 16, 1996 Effective: January 15, 1996 Published January 24, 1996 REMARKS: (DRAFT 4) ' 66 AN 16 fii'l 7 57 ( DRAFT 931 ROLL CALL VOTE AYES NOES ABS EX Arakaki X Bonk -Abramson X Childs X De Lima X Domingo X Osorio X Rath X Ray X Smith X v®vo ( DRAFT 931 1 DO HEREBY CERT7FY that the foregoing BILL was adopted by the County Council and published as :ndicated above. 1Pr vcd/Bimpprvrrd this 145-. day I 19�. to,Y6 R, CO LINTY F WAII COUNCIL CHAIRMAN "CO LINTY CLER K Bill No.: 158 (Draft 5 ) Reference: C-734/PC-88 Ord No.: ROLL CALL VOTE AYES NOES ABS EX Arakaki X Bonk -Abramson X Childs X De Lima X Domingo X Osorio X Rath X Ray X Smith X 7 2 0 0 1 DO HEREBY CERT7FY that the foregoing BILL was adopted by the County Council and published as :ndicated above. 1Pr vcd/Bimpprvrrd this 145-. day I 19�. to,Y6 R, CO LINTY F WAII COUNCIL CHAIRMAN "CO LINTY CLER K Bill No.: 158 (Draft 5 ) Reference: C-734/PC-88 Ord No.: cphcn K. Yanwshiro Mayor MAIS140om >t November 5, 1993 Mr. Richard Frye, Oceanside 1250 (9011nfu of Anfilatt PLANNING COMMISSION 25 Aut.unt Scmec, Room 109 • I1;19, Ilawatt 96720.4252 (808) 9618288 Faw (808) 961.961 S Project Manager 74-5620A Palani Road, Suite 200 Kailua-Kona, HI 96740 Dear Mr. Frye: Change of Zone Application (REZ 93-5) Request: Agricultural-5acre (A -5a) and Unplanned (U) to Agricultural-lacre (A -la); Use Permit Application (USE 93-2) Request: 27 -Hole Golf Course, Golf Clubhouse, Driving Range and Related Improvements Special Management Area (SMA) Use Permit Application (SMA 93-1) Request2 27 -Hole Golf Course, Driving Range, Public Shoreline Access and Related Improvements Applicant: Oceanside 1250 TMK: 7-9-6:portion of 1; 7-9-12:portions of 3, 4, 5 & 11; and 8-1-4:uortion of 3 The Planning Commission at its duly held public hearing on October.27, 1993, voted to recommend the approval of the above -referenced Change of Zone request to the County Council. The Commission also voted to approve the above -referenced Use Permit and Special Management Area (SMA) Use Permit applications. The subject properties are located makai of the Mamalahoa Highway, makai of Kealakekua Village, Halekii, Keekee, North and South Kona, Hawaii. The Commission voted to recommend approval of the Change of Zone to the County: Council subject to the following conditions: EXHIBIT -+-E Mr. Richard November 5, Page 2 i • Frye, Project Manager 1993 • A. The applicant, successors or assigns shall be responsible for complying with all of the stated conditions of approval. B. The applicant shall indemnify and hold the County of Hawaii harmless from and against any loss, liability, claim or demand for the property damage, personal injury or death arising out of any actor omission of the applicant, its successors or assigns, officers, employees, contractors and agents under this ordinance or relating to -or connected with the approval of the ordinance. C. The effective date of the rezoning shall be upon; (1) the execution of an agreement, meeting with the approval of the Water Commission of the County of Hawaii, to assign water commitment rights in the Kealakekua Source Agreement to the current landowners of the subject properties within one -hundred -eighty (180) days from the effective date of this ordinance; provided that a maximum ninety (90) day extension may be granted by the Planning Director with reasonable and sufficient Justification; and (2) the acceptance by -the Department Of Water Supply of the required water commitment payment in accordance with its "Water Commitment Policy" within one -hundred -eighty (180) days from the effective date of this ordinance. D. Subdivision plans for any portion of the agricultural -zoned area within.the project site shall be submitted to the Planning Department and Final Subdivision Approval secured within five (5) years from the effective date of this Condition C. ordinance as determined in E. A wastewater disposal system shall constructed in a manner meeting with the approval of the State Department of Health and/or the Department of public Works, whichever is applicable. F• All electrical and communication utilities and systems within the project site shall be placed underground, with the exception of the main 69 Kv transmission line from the Mamalahoa Highway to the proposed electrical substation site. • Mr. Richard Frye, Project Manager November 5, 1993 Page 3 • G. A Flood Study of the project site shall be submitted to the Planning Department in conjunction with plans submitted for subdivision review for any portion of the Agricultural -zoned area within the project site. Drainage improvements shall be constructed in a manner meeting with the approval of the' Department of Public Works, prior to the issuapce of Final Subdivision Approval for the residential -agricultural development. H. An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultationwiththe Department of Land and Natural Resources -Historic Preservation Division and Hawaiian community organizations, prior to submitting plans for subdivision review. The Plan shall consist of three subplans; (1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim Protection/preservation plan for the sites to undergo preservation, and (3) an interpretation plan which shall include buffer zones, signage and long-range preservation concerns which may be submitted at a later date. Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the project area. I. Should any unidentified sites or remains such as artifacts, shell, bone, or charcoal deposits, human burials, rock or coral alignments, pavings or walls be encountered, work in the immediate area shall cease and the Planning Director shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken. J. A solid waste management plan shall be prepared meeting with the approval of the Department of Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the proposed development. Approved recommendations and mitigation measures shall be implemented at a time and in a.manner meeting with the approval of the Department of Public Works. . 0 Nr. Richard Frye, Project Manager November 5, 1993 Page 4 r-� K. Access(es) to the project site shall be constructed in a manner meeting with the approval of the Departments of Transportation -Highways Division and/or Public Works, whichever is applicable, for the following roadway improvements which shall be completed prior to the issuance of Final Subdivision Approval for any portion of the residential -agricultural subdivision within the project site: (1) the channelization and signalization of the project site's Mamalahoa Highway-Haleki'i Street intersection; (2) the construction of'the Mamalahoa Highway Bypass, consisting of two lanes with sufficient right-of-way to accommodate its.expansion to four lanes, along its general alignment as shown in Figure 20 of the villages at Hokukano Final Environmental Impact Statement (FEIS) dated September 1993; (3) the construction of channelization improvements to the ByPass at its intersections with Kuakini Highway, Mamalahoa Highway/Napo'opo'o Road and Haleki'i Street; and (4) the construction of the project's main access roadway extension from Haleki'i Street along the general alignment as reflected in Figure 4 of the FEIS With provisions for a stub -out along the project site,& northern boundary to accommodate its future connection with the Alii Highway. L. Infrastructural improvements as required under Conditions E, C and K shall not prohibit the Applicant from participating in a Development Agreement or any other agreement together with the appropriate bond, surety or other security deemed acceptable by the Planning Director, appropriate agencies or the County Council, whichever -is applicable, to ensure the provision of necessary infrastructural improvements to support the proposed development in a timely manner. M. The Applicant shall participate in the funding and construction of any regional roadway improvements as may be required by the State Department of Transportation, provided.that any costs borne by the applicant shall be credited and limited to the amount Of its fair share contribution for regional road and traffic impacts, as required in Conditions K and N. N. The Applicant shall pay its fair share contribution to address potential regional impacts of the project with respect to park, tire, police, solid waste disposal facilities, sewer and roads. The fair share • Mr. Richard Frye, Project Manager November 5, 1993 Page 5 ob contribution shall be initially based on the representations contained within the change of zone application and may be increased or'reduced proportionally if the residential -agricultural lot counts are adjusted. A pro rata portion of the contribution, based upon the density of the land affected, shall become due and payable, at the discretion of the Planning Director, in the event the Applicant conveys an ownership, leasehold, or controlling development interest in the land prior to receiving its subdivision approval of any portion of the agricultural -zoned area within the project site. otherwise, said contribution shall be satisfied in conjunction with the receipt of Final Subdivision Approval of the affected land. The'fair share contribution for each residential -agricultural lot shall be based on a maximum density for each lot as determined by the applicant with the concurrence of the Planning Director. The fair share contribution in a form of cash, land,'facilities, or any combination thereof shall have a maximum combined value of $ 4,701,205.74. In lieu of paying the fair share contribution, the applicant may construct such facilities related to park, fire, police, solid waste disposal facilities, sewers and roads with the approval of the appropriate agency(ies). O. The Applicant shall conform, to the best extent practicable, with the guidelines as provided within the Strategies for Energy Efficient Architecture by Hawaiian Design and the State Model Energy Code, in the construction of dwellings within the project site. P. The Applicant shall contribute its fair share of costs attributable to school facilities made necessary by the project, provided that the contribution of Applicant's fair share shall be paid no later than the date upon which Final Subdivision Approval is obtained for the two -hundredth and first (201st) lot of the small lot subdivision. Q. Comply with all applicable laws, rules, regulations and requirements, including those.of the Department of Health, Fire, State Department of Education and the Department of Water Supply. Mr. Richard Frye, Project Manager November 5, 1993 Page 6 R. Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance. S. An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone. 'The report shall address in detail the status of the development and the compliance with the conditions of approval. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required. T. An extension of time for the performance of conditions within the ordinance, with the exception of Condition C, may be granted by the Planning Director upon the following circumstances: (1) the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, and that are not the result of their fault or negligence; (2) granting of the time extension would not be contrary to the General Plan or Zoning Code; (3) granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; (4) the time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year); and (5) should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant's request to the County Council for appropriate action. Further, should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall Initiate rezoning of the area to its original or more appropriate designation.. Use Permit No. 115 is hereby issued to construct a 27 -hale golf course, golf clubhouse, driving range and related improvements. Approval of the Use Permit is based on the following: In considering a Use Permit for a proposed 27 -hole golf course and relm+-...d improvements, Rule 7 of the Planning 0 4b Mr. Richard Frye, Project Manager November 5, 1993 Page 7 Commission relating to Use Permits require that such action conform to the following guidelines: (a) The proposed use will still be consistent with the general purpose of the zoned district, the intent and purpose of this chapter, and the County General Plan; . (b) The proposed use will not be materially detrimental to the public welfare nor cause substantial, adverse impact to the community's character or to surrounding properties; (c) The proposed use will not adversely affect similar or related existing uses within the surrounding area, community or region; and (d) The rrorosed 11se will not %inreasonably burden public agencies to pi•uvlde i•uads alld Wt.ruut.U, sewer, water, drainage, schools, police and fire protection and other related infrastructure. Non-conformance with any of the above-mentioned guidelines would require that the requested Use Permit be denied. The establishment of a 27 -hole golf course and related facilities within the County's Unplanned (U) zoned district will not be inconsistent with the general purpose of that zoned district, the intent and purpose of the Zoning Code, and the General Plan, provided adequate mitigating conditions are met. The subject request will provide a form of perpetual open space, thus, maintaining the current open character of the surrounding area to the north and south along with its natural and scenic qualities. The proposed development would, therefore, be consistent with the policies of both the Recreation and Open .Space elements of the General Plan which state that recreational facilities in the County shall reflect the natural, historic, and cultural character of the area, and that the recreational use should be compatible with the adjacent areas. The project site is characterized as predominantly pastureland used for cattle grazing. Located makai of the project site on the boundary of North and South Kona is the cinder cone Pulu Ohau, or Red Hill which is a prominent feature in the middle of the property, near the coast. No improvements are presently being Mr. Richard Frye, Project Manager November 5, 1993 Page 6 proposed within this area, which is located within the State Land Use conservation District. Also located makai of the project site along its northwestern boundary is the historic Hokukano Village. An archaeological inventQry survey of the entire Villages at Hokukano projectsite located evidence of features associated with the Kona Field System, primarily the rectangular walled fields formed by kua'iwi walls. Other features associated with the walled fields consist of intermittent mound concentrations, terraces and modified outcrops. The survey located sol structural and non-striir-*ural features which were subsequently organized into ,47., .1tes and site complexes, some of which were 3'l•�ted within the golf course project site. Of this total, of these sites are recommended for preservation; 7 mites are recommended for selective preservation, and 2:'1 sites are recommended for data recovery. These findings wr-:•e supported by limited subsurface testing conducted at nine probable and possible burial sites, one agricultural mound complex, and within two extensive lava tube systems. Fourteen sites within the project area were interpreted to be possible heiau or shrine structures, with one major structure known as "Ukanipo'c. Sites intended -for selective preservation include the Kuakini Wall, distinguishable portions of the King's Trail or Ala Loa, the railroad bed and the ahupua'a boundary walls. Preservation is recommended for all confirmed burial sites, all confirmed and probable heiaus, and all major lava tubes. The Applicant intends to preserve the King's Trail or Ala Loa in its present location, with slight modifications if necessary. Possible burials, if not preserved "as is", will be treated in a manner as prescribed by the State Department of Land and Natural Resources (DLNR)-Historic Preservation Division. A detailed archaeological mitigation and interpretation plan, meeting with the approval of' the Planning Director in consultation with the DLNR-Historic Preservation Division, is recommended prior to the submittal of plans for Final Plan Approval review of the golf course or any land alteration activities. The granting of this proposal Would complement the goals of the General Plan's Recreation Element which states to "Provide a diversity of environments for active and passive pursuits" and to "Provide a wide variety of recreational opportunities " These goals will be further achieved through the development of a public play program at the propose golf course which will be implemented prior to commencing operations. Mr. Richard Frye, Project Manager November 5, 1993 Page 9 Golf courses are permitted uses within the State Land Use Agricultural District provided that the affected lands are not classified either "A" and "B" soils by the Land Study Bureau. The Land Study Bureau's Overa-11 Master Productivity rating for agric4ltural use of the golf course project.site is Class "D" and "Be, or "Poor" and "Very Poor", respectively. Therefore, consideration of a golf course within these State land use parameters is permissible. The granting of the proposed use will not be materially detrimental to the public welfare nor cause substantial adverse impact to,the communityfs character or to surrounding properties. The character of land use in the immediate area consists largely of pasture and vacant lands to the north and south of the golf course project site. Located makai of the project site on the boundary of North and South Kona is the cinder cone Pu'u ohau, or Red Hill which is a prominent feature in the middle of the property near the coast. Also located makai of the project site along its northwestern boundary is the historic Hokukano Village. Pulu ohau and Hokukano Village or located within the coastal portions of the affected properties and designated Conservation by the State Land Use Commission. Located to the east (mauka) are the Kona Scenic and Keekee Estates subdivisions and the town of Kealakekua. Approval of the proposed golf course in this particular location would expand on the open space eharacter'to the north, south and west (makai) of the project site, thereby complementing the open .space character of the Conservation District along the coastal area fronting the project site as well as reducing urban development pressure on the nearby historic Hokukano Village. The siting of the clubhouse, driving range, parking areas, maintenance facility and related improvements will consider the historical, open space, and 'cu ltural elements located within and adjacent to the project site during approval review. The Planning Department's Guidelines fora Golf Course Development will be utilized to assure that adjacent properties will not be adversely affected by direct Play on the golf course (i.e. errant golf balls). In addition, the central location of the clubhouse and its related facilities will take advantage of the landscaping elements within the golf course to mitigate any adverse visual impacts to surrounding properties as well as from coastal areas. Due consideration.by the Applicant in the siting, height, bulk, color schemes, and landscaping of golf Mr. Richard Frye, Project Manager November 5, 1993 Page 10 course -related structures will be required to mitigate any adverse noise and visual impacts. The granting of the proposed affect similar or relatedexiu stinguses se lwithin adversely surrognding area, community, or region. Kona Country Club, a resort golf course located in Keauhou, is the only existing course in the immediate region. The Kona Country Club golf course is oriented for resort and public play, while the proposed golf course will be oriented toward private membership play. Therefore, it is not anticipated that this. approval would affect the operations of the Kona Country Club. Located approximately 16 miles to the south of the project site in opihihale is the proposed Akahi Golf Course, which received the Planning commission's approval in 1992.. While the proposed Akahi Golf Course is also planned as a private membership course; it is anticipated that the distance of these project sites from one another would assist to negate any adverse affect to the operation of either golf courses. All essential utilities and services required for the development of a golf course and related facilities are or will be made available. Conditions of approval relative to the provision of such services are being proposed. Primary access to the golf course and clubhouse facilities will be provided through an extension_ of Haleki'i street. Haleki,i Street, which has a pavement width of approximately 34 feet with gutters and sidewalks within an 80 -foot wide right-of-way. Haleki'i Street is currently channelized as a "T" intersection with separate left and right turn lanes at its intersection Nith the Mamalahoa Highway. A Traffic Impact Study prepared by the Applicant found that the traffic signal warrant for this intersection has been marginally met based on existing traffic volumes. Therefore, it is recommended that signalization of this intersection and its attendant improvements be provided prior to commencing operations at the golf course. The General Plan Facilities Map delineates this Haleki'i Street extension as a major arterial in a makai, then north, direction to its eventual connection to the proposed Alii Highway Extension. This approval is also conditioned upon the extension and construction of this. Alii Highway-Hale.ki'i Street extension along its general mauka-makai alignment as shown on the General Plan Facilities Map in accordance with county dedicable standards meeting with the requirements of the Department of Public Works, concurrently with the golf course development. No golf cart paths shall gain access Mr. Richard Frye, Project Manager November S, 1993 Page 11 across the this extension. Further, the Alii Drive-Haleki•i Street extension shall be open to the public or may be dedicated to the county. To eliminate impacts through the possible future development of residential lots along the Alii Drive-Haleki'i Street extension, no direct access shall be to permitted mladjoining nyresidentiallotsshallroadwa be from interior access systems. Y The Department of water Supply has issued the Applicant 499 water commitments, which is sufficient to support the golf clubhouse activities. A water assignment agreement and commitment payment will be required from the Applicant prior to the submittal of golf course plans for Plan Approval review. An "Evaluation of Water Resources for Hokukano Project" was conducted by the Applicant which found that for general planning purposes, the proposed golf course would demand approximately 900,000 gallons of 'water e irrigation purposes. The Applicant has drilled an for irrigation well within the project site to explore the use of brackish water to supplement.its golf course irrigation needs. The pilot irrigation well indicated promising results for its possible use as a'brackish water source for irrigation purposes. In addition, the provision of on-site retention basins and storage reservoirs within theproposed golf course will provide another supplemental source of irrigation water through the use of excess runoff. A condition of approval will require the Applicant to establish an irrigation water source of sufficient quantity and quality to support the total irrigation needs of the Proposed golf course, prior to the commencement of operations at the golf course. All other essential utilities and services are or will be made available to support the proposed golf course, golf clubhouse, driving range and related improvements. Approval of the Use Permit.is subject to the following conditions: 1• The applicant, successors or assigns shall comply with all of the stated conditions of approval. 2. The applicant.shall indemnify and hold the County of Hawaii harmless frog and against any loss, liability, claim or demand for the property damage, personal injury or death arising out of any act or omission of the applicant, its successors or assigns, officers, employees, contractors and agents under this permit or Mr. Richard Frye, November 5, 1993 Page 12 t Project Manager 4`7 relating to or connected with the approval of this permit. . 3. The Applicant shall provide assurance(s) satisfactory to the Planning Director, upon consultation with the Department of Land'and Natural Resources -Commission on Water Resource Management and the Department of Health, that a water source(s) of sufficient quality and quantity to support the total irrigation needs of the golf course be established prior to the issuance of a certificate of'occupancy or opening of the golf course, whichever occurs first. 4. Final Plan Approval for the proposed golf course and related improvements shall be secured from the Planning Director. In the design and review of any improvements, noise and visual impacts shall be minimized through appropriate siting, height, bulk, color schemes, and landscaping. The Planning Director shall determine the related improvements and accessory uses to the golf course not inconsistent with the applicable provisions of the Zoning Code at the time of plan approval review. 5. Construction of the golf course and related improvements shall be completed within five (5) years from the date of receipt of Final Plan Approval. 6. A detailed,drainage study shall be prepared by the applicant for review and approval by the Department of Public Works prior to submittal of plans for Plan Approval review of the golf course. The Study shall take into consideration the tile drainage system, retention basins and "Reduced Turf" design to be incorporated within the golf course. A drainage system shall be installed meeting with the approval of the Department of Public Works, prior to issuance of a certificate of occupancy or golf course opening, whichever occurs first. 7. In the design of the golf course, the County of Hawaii Planning Department's Guidelines for Golf Course Design (November 1989, as,amended) shall be utilized. The Planning Director shall determine appropriate setback requirements (i.e. building and property line) at the time of plan approval review. Easements for golf course purposes over and across abutting lots, either Mr. Richard November 5, Page 13 t Frye, Project Manager 1993 • existing or proposed, shall not be permissible, except as may be approved by the Planning Director. B. The Alii Drive-Haleki'i Street extension shall be constructed as an arterial along its general mauka-makai alignment as shown on the General Plan Facilities Map to county dedicable standards, meeting with the approval of the County Department of Public Works. The mauka-makai alignment o:f Alii Drive-Haleki'i Street shall be installed prior to issuance of a certificate of occupancy or golf course opening, whichever occurs first. The Alii Drive-Haz.eki'i Street extension shall allow for perpetual public use by easement or be dedicated to the county. No golf cart path shall be permitted to cross over the AM Drive-Haleki'i Street extension, except as may be approved by the Planning Director and chief Engineer. Furthermore, direct access from future residential lots adjoining this alignment will not be permitted. 9. Intersection improvements at the Mamalahoa Highway-Haleki'i Street intersection, including traffic signals and channelization, shall be installed in a manner meeting with the approval of the State Department of Transportation and the County Department of Public Works, prior to issuance of a certificate of occupancy or golf course opening, whichever occurs first. 10. An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources -Historic Preservation Division and Hawaiian community organizations, prior to submitting plans for plan approval review. The Plan shall consist of three subplans; (1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim protection/preservation plan for the sites to undergo preservation, and (3) an interpretation plan which shall include buffer zones, signage, and long-range preservation concerns which may be submitted at a later date. Approved mitigation measures shall be implemented prior to or in conjunction with any land alteration activity within the project area. The Plan shall also include a detailed map of known lava tube/cave systems located within the project site and • Mr. Richard Frye, Project Manager November 5, 1993 Page 14 mitigative measures to ensure that the golf course and systems, related drainage systems do not impact these cave 11. Should any unanticipated archaeological sites or features be uncovered during land preparation activities, work within the affected area shall immediately cease and the Planning Director immediately notified. Work within the affected area shall not resume until clearance is obtained from the Planning Director. 12. The use of pesticides and herbicides in conjunction with all phases ofoperation shall conform with the applicable regulations of appropriate governmental agencies. 13. During construction, measures shall be taken to minimize the potential of both fugitive dust and runoff sedimentation. Such measures shall be in compliance with construction industry standards and practices Utilized during construction projects of the State of Hawaii. 14. Prior to construction, the applicant shall demonstrate to the satisfaction of the Planning Director that all Proposed off-site construction material such as topsoil or sand are being supplied from an approved quarry or resource site. 15. A program for public play at the our shall be developed meeting with theoapprovalposedlofcthese Planning Director, prior to the issuance of a certificate of occupancy.or the opening of the golf course, whichever occurs first. The Program shall include, but not be limited to, the provision of public play, at kama'aina rates, at least one (1) day per month. 16. The Applicant shall establish a program for employee housing and which shall be submitted for the review and approval of the Planning Director and Housing Agency together with the submittal of plans for plan approval of the golf course and clubhouse. The program shall include provisions for on-site or off-site housing for the employees at a ratio to be determined by a study of surrounding housing opportunities and employee needs. The ratio shall be no less than 101 and no more than Mr, Richard Frye, Project Manager November 5, 1993 Page 15 50% of the number of employees. The program may also include consideration for other alternatives such as rental housing subsidies or housing allowances. The approval of the program shall be secured prior to the issuance of a certificate of occupancy with the golf course. 17. A job training program for the operating phase of the golf course and golf clubhouse shall be developed and submitted to the Planning Director for review and approval prior to the issuance of a certificate of occupancy or opening of the golf course, whichever occurs first. 18. Comply with all other applicable laws, rules, regulations and requirements, including those of the Departments of Health and Public Works. 19. An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the permit. The report shall include, but not be limited to, the status of the development and to what extent the conditions of approval are being complied with. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning. Director acknowledges that further reports are not required. 20. An initial extension of, time for the performance of conditions within the permit may be _granted by the Planning Director upon the following circumstances: a) the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns,* and that are not the result of their fault or negligence; b) the granting of the time extension would not be contrary to the general plan or zoning code; c) granting of the time extension would not be contrary to the original reasons for the granting of the permit; and d) the time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be .performed within one year may be extended for up to one additional year). Further, should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate procedures to revoke the permit. Mr. Richard Frye, November 5, 1993 Page 16 • Project Manager 3 Special Management Area (SMA) Use Permit No. 345 is hereby issued to construct a 27 -hole golf course, driving range, public shoreline access and related improvements. Approval of the Special Management Area (SMA) Use Permit is based on the following: The purpose of Chapter 205-A, liawaii Revised Sr�rstes, and Rule 9, Special Management Area Rules and Regulations of the County of Hawaii is to preserve, cwhere Possible, to restore the natural re' rrcesof the�Coastal zone areas. Therefore, special controls on development within an area along the shoreline are necessary to avoid permanent loss of valuable resources and the foreclosure of management options. one of the criteria for approving'a development within the Special Management Area (SMA) is that it is consistent With the General Plan and Zoning Code. The construction of portions of a proposed 27 -hole golf course, driving range, Public access improvement and other related improvements within the Unplanned (U) zoned district Will not be inconsistent with the general purpose of the Zoning Code, - and the General Plan, provided adequate mitigating conditions are met. The subject request willprovide a form of perpetual open space, thus, maintaining the current open character of the surrounding area to the north, south and west (makai) along with its natural and scenic qualities. The proposed development would, therefore, be consistent with the Policies of the Recreation and Open Space elements of the General Plan which state that recreational facilities in the County shall reflect the natural., historic, and cultural character of the area, and that the recreational use should be compatible with the adjacent areas. The project site is characterized as predominantly pastureland used for cattle grazing. Located makai of the project site on the boundary of North and South Kona is the cinder cone Pu'u Ohau, or Red Hill which is a prominent feature in the middle of the property near the coast, No improvements are Presently being, Proposed.within these areas, which are located within the State Land Use Conservation District. Also located makai of the project site along its northwestern boundary is the historic Rokukano Village. The proposed golf course will not encroach upon lands located makai of the project site within the State Land Use Conservation District. An archaeological inventory survey of the entire Villages at Mr. Richard Frye, Project Manager November 5, 1993 Page 17 Nokukano project site recommended that of the 473 site and site complexes located, 179 are recommended for preservation, of which 17 are recommended for selective preservation, and 289 sites are recommended for data recovery. With the approval of an archaeological mitigation and interpretation plan by the Planning Director, in consultation with the Department of Land and Natural Resources -Historic Preservation Division, archaeological features will be incorporated within the golf course project site through historic parks, interpretive programs and an extensive pedestrian trail system. According to plans, an internal roadway within the northern portion of the project site will provide a public access roadway and parking area in the vicinity of the proposed 8th and 9th holes of the golf course. It is recommended that the Applicant develop and implement a comprehensive coastal public access plan for the review and approval of the Planning Director. With the approval and implementation of the comprehensive coastal access plan and the establishment of the public access area within the Conservation District, the proposal would not have any adverse effect on public access to the shoreline and would complement the goals of the General Plan's Recreation Element which states to "Provide a diversity of environments for active and passive pursuits" and to "Provide a wide variety of recreational opportunities . . . . Another criteria in reviewing an SMA Use Permit application is that "The development will not have any significant adverse environmental or ecological effect, except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interest. Such adverse effect shall include, but not limited to, the potential cumulative impact of individual developments, each of which taken in itself might not have a substantial adverse effect and elimination of planning options." The proposed improvements are not anticipated to create substantial adverse ecological effects to the affected area. No endangered species of flora or fauna were located within the project site nor were any special habitats identified. Air emissions generated during the construction phase can be mitigated by existing construction regulations. As proposed by the Applicant, native plant species, such as the Prosopis tree, Capparis, and Wili wili tree, shall be preserved or utilized to the furthest extent possible for landscaping in and around the golf course. The use of such native plantings will be detailed in a landscaping plan to be required of the 6 .4 Mr. Richard Frye, Project Manager November 5, 1993 Page 18 Applicant. Applicable and appropriate governmental regulations will be adhered to in the application and use of pesticides and herbicides within the project site. The project site is located approximately' 300 feet from the shoreline. Any potential runoff or discharge which .could reach ocean waters can be handled by existing construction regulations during the construction phase and on-site drainage systems during operations. Wastewater generated by the golf course clubhouse will be disposed of within a wastewater treatment system meeting with the approval of the Department of Health. As recommended by the Department of Public Works, appropriate drainage systems will be required to accommodate runoff generated by the proposed improvements. To ensure that do significant adverse impacts to coastal systems are generated, a groundwater and coastal water monitoring plan(s) will be required. The proposed golf course will not have an adverse impact to cultural or historical resources within the area. An archaeological inventory survey of the entire Villages at Hokukano project site located 473 sites and site complexes, some of which were located within the golf course project site. Of this total, 179 of these sites are recommended for preservation of which 17.sites are recommended for selective preservation, and 289 sites are recommended for data recovery. Sites intended for selective preservation include the Kuakini Wall, distinguishable portions of the King's Trail or Ala Loa, the railroad bed and the ahupua'a boundary walls. Preservation is recommended for all confirmed burial sites, all confirmed and probable heiaus, and all major lava tubes. The Applicant intends to preserve the King's Trail or Ala Loa in its present location, With slight modifications if necessary. Possible burials, if not preserved "as is", will be treated in a manner as prescribed by the State Department of Land and Natural Resources (DLNR)-Historic Preservation Division. -These archaeological mitigative measures were recommended by the Applicant and it's archaeological consultant. A detailed archaeological mitigation and interpretation plan, meeting with the approval of the Planning Director in consultation with the DLNR-Historic Preservation Division, is recommended prior to the submittal of -plans for Final Plan Approval' review of the golf course or any land alteration activities. • Mr. Richard Frye, Project Manager November 5, 1993 Page 19 Due to the open nature of the proposed golf course, viewplanes within the area will not be significantly affected by the proposed improvements. To further ensure that viewplanes will not be adversely impacted, all electrical and communication systems will be placed underground, with the exception of the 69 KV line from the Mamalahoa Highway to the proposed substation site. Approval of the Special Management Area (SMA) Use Permit is subject to the following conditions: I. The applicant, successors, or assigns shall be responsible for complying with all of the stated conditions of approval; 2. The applicant shall indemnify and hold the County of Hawaii harmless from and against any loss, liability, claim or demand for the property damage, personal injury or death arising out of any act or omission of the applicant, its successors or assigns, officers, employees, contractors and agents under this permit or relating to or.connected with the approval of this permit. 3. An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources -Historic Preservation Division and Hawaiian community organizations, prior to submitting plans for plan approval review. The Plan .shall consist of three subplans; (1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim protection/preservation plan for the sites to undergo preservation, and (3) an interpretation plan which shall include buffer zones, signage, and long-range. preservation concerns which may be submitted at a later date. Approved mitigation measures shall be implemented prior to or in conjunction with any land alteration activity within the project area. The Plan shall also include a detailed snap of known lava tube/cave systems located within the project site and mitigative measures to ensure that the golf course and related drainage systems do not impact these cave systems. Mr. Richard Frye, Project Manager' November 5, 1993 Page 20 4. Should any unidentified sites or remains,' such as lava tubes, artifacts, shell, bone or charcoal deposits, human burials, rock.or'coral alignments, pavings or wall be encountered, work in the affected area shall cease and the Planning Director immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that Sufficient mitigative measures have been taken. S. A detailed drainage study shall be prepared by the applicant for •review and approval by the Department of Public Works prior to submittal of plans for Plan Approval review of the golf course. The Study shall take into consideration the tile drainage system, retention basins and "Reduced Turf" design to be incorporated within the golf course. A drainage system shall be installed meeting with the approval of the. Department of Public Works, prior to issuance of a certificate of occupancy or golf course opening, whichever occurs first. 6. The use of pesticides and herbicides in conjunction with all phases of operation shall conform with the applicable regulations of appropriate governmental agencies. 7. During construction, measures shall be taken to minimize the potential of both fugitive dust and runoff sedimentation. Such measures shall be in compliance with construction industry standards and practices Utilized during construction projects of the State of Hawaii. S. A final comprehensive public access plan, to be developed in consultation with community groups, shall be submitted to the Planning Director in conjunction with golf _course plans submitted for plan approval review. The final comprehensive public access plan shall be developed in consultation with the Planning Director and the Department of Land and Natural Resources and shall include mauka-makai and lateral shoreline accesses; parking area(sj, signage, emergency response considerations, restrictions on use (if any), provision of recreational and restroom facilities at appropriate locations, and related improvements. Within one (1) year from the date of approval of the. final comprehensive public access plan by the Planning Director, the Applicant shall apply for a Conservation Mr. Richard Frye, Project Manager November 5, 1993 Page 21 District Use Permit; Special. Management Area Use Permit and other applicable permits/approvals to allow for the implementation of the recommendations of the approved Plan. 9. The Alii Drive-Halekifi Street extension shall allow for perpetual public use by easement or be dedicated to the County. 10. Areas of the affected properties located within the State Land Use Conservation District shall, be set aside as public shoreline access areas in a manner consistent with the approved final comprehensive public access plan via covenants recorded with the Bureau of Conveyances. Upon approval of the final comprehensive public access plan, draft covenants which detail the rights, obligations and privileges of the public, the County of Hawaii and the applicant, its successors or assigns shall be submitted to the Planning Director for approval. The approved covenants shall be recorded prior to the receipt of Final Plan Approval for the golf course or the subdivision of any portion of the Agricultural -zoned area within the project site, whichever occurs first. These covenants shall be encumbrances running with the land and shall be binding on all parties and persons claiming under them. 11. Prior to the commencement of construction of any portion of the proposed golf course development, an overall monitoring plan on the potential pollution to groundwater and coastal waters shall be submitted to the Planning Director for approval'in consultation with the Department of Health. A Golf Course Hest Management Plan and Integrated Groundwater Monitoring Plan shall be component parts of this overall monitoring plan. 12. The Applicant shall prepare and submit to the Planning Director for approval a Landscaping Plan for the golf course and golf clubhouse along with plans submitted for plan approval review. The Plan shall discuss the method of preservation and/or propagation and use of native plants, such as the Prosopis tree, Capparis, and wili*Wili tree, within and around the golf course and golf clubhouse facilities. Mr. Richard Frye, Project Manager November 5, 1993 Page 22 13. All electrical and communication utilities and systems shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site. id. Comply.with all other applicable laws, rules, regulations and requirements; 15. An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this permit. The report shall include, but not be limited to, the status of the development and to what extent the conditions of approval are being complied with. This condition shall remain in effect until.all of the conditions of approval have been complied and the Planning Director acknowledges that further reports are not required; I6. An initial extension of time for the performance of conditions within this permit may be granted by the -Planning Director upon the following circumstances: (a)'the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, and that are not the result of their fault or negligence; (b) granting of the time extension would not be contrary to the General Plan or the Zoning code; (c) granting of the time extension would not be contrary to the original reasons for the granting of the permit; and (d) the time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year). Further, should any of the conditions not be met or substantially complied with in a timely fashion,.the Director shall initiate procedures to revoke this permit. These approval do not, however, sanction the specific plans submitted with the applications as theymay be subject to change given specific code and regulatory requirements of the affected agencies. Mr. Richard Frye, November 5, 1991 Page 23 • Project Manager • Should you have any questions, please feel free to contact Rodney Nakano of the Planning Department at 961-8288. Sincerely, Wilton Wong, Vice Chairman Planning Commission DSA:jdk LOcean0l.PC xc: Honorable Stephen K. Yamashiro, Mayor Planning Director P$R Hawaii, Inc. Department of Public Works Department of Water Supply County Real Property Tax Division West Hawaii Office Office of State Planning, CZM Program w/background Department of Land and Natural Resources Department of Transportation -Highways -Division Department of Parks & Recreation Fire Department Police Department Department of Health Department of Education Office of Housing and Community Development Plan Approval Section Subdivision Section Jw. r'at w, • moo. .� � •�: ;(C1,11Cf1 K. Y11112:kM140 z�'t •Ot. N��' O1.IIlutfu of �ZICLTZIH PLANNING COMMISSION 2s Avrltnl &tcet. lteom log • Ink 114w►N 96720.4252 MR) 961.8288 F•R (808) 961-961 S Cfat'17II:161) MAIL Z 416 223 850 September 28, 1995 R. T. "Dick" Frye, Project Manager 1250 Oceanside Partners 74-5620A Patani Road; Suite 200 Kailua-Kuua, III 96740 Dcar Mr. Frye: licant: Occnnside 1250 dba 1250 Oceanside Partners ial Management Area Use Permit Application No. 9S-3 i%,.ynest. To Allow Devc1opmem of Portions of a 730 -Lot Agricultural Subdivision and its Related Improvements TA.Y.- MallAn..:_7-9-12:11 and Por-dooralij 4:$l.!:4*--url. t1.!]C 1__ The I'lanitilig Commission at its duly held public hearing on September 14. 1995, vo te.0-t 2ppruve (lie above-reference,.l application. Special Manabctncnt Arca Uec (SMA) Permit Nur 3Is hereby issued to allow the dcvelopfticnt of portions of the proposed 400 -tut a�t•icttltur'al sub(livisit)n ancf petaled inft asiructure intproventents aad facilities on approximately 110 acres of land. •I'hc application replescnts a portion of tic approximawly 1,540 acres master plaited community I:nowl, as the Villages of Hokukano. 'I lie property is located nrttkai of IvI:ullalalttaa IJi,lnt a}• a11J Kealakckua Vilt;agc, Ilaleki'i, Keekee, North and South Kona. Hawaii. Approval of this request is based on (lie following. '1'11c purpose of Chapter 205•A. Hawaii Revisal Statutes. anti Itttic 9. SIjccial Marlagnment Area Rules and Ilcgulations of the County of Ilawaii PlaiminL Conurtissioll is it, prtael VC, protect and, where possible, lu,restore the statural tcsoulccs or tile: cua.:ull Zone areae. Thercfure, special controls wt devclupntctlt within an arca along the shoreline arc necess:u'y to avoid permanent loss 'of valuable resources and the roreclusure of man .einem options. ` One of the criteria for al)proving a detelopntent within (lie Special h-lanagement Arca (SNIA) is that it is consistent %with the General flan and 'Zoning Codc. 7'Itc cubjcct arca is designated for Orchards acid Extensive Agricultural uses by the General flan Land Use ('attem Allocation Guide (LUI'AG) Map. The applicant's prulxlsal to th �•e11�1� agriculuual lute Ocie -asst and larg,ec in sire i, consistent with lite Gcnel it flan Goals. 1'ulici- incl EXHIBIT F T. -Dick" Frye. Project Manager ) Occatuide Partners .-6e2 LUPAG Map. Such agricultural -type of development Provides oppor(unities for a mix of residential and limited -scale agricultural activities. The project site has historically been marginally used for cattle grazing purposes. The applicant is exploring options aimed at integrating agricultural zones ori portions of tine agricultural zoned lots in a Matmer that would allow for an efficient management operation for select crops and/or orchard uses. It is anticipated that these agricultural zones will be provided to farmers through a leasing arrangement at a nominal cost initially, with tl)c applicant to provide the necessary infrastructural development to sustain such agricultural activity. Along with tine provision of residential sites. lite proposed one -acre lots can provide opportunities for gardening, )tubby nctivitics and reasonable -scaled agricultural erlJeavors oil these marginal agricultural lands. This combination of uses will provide a balance between the agricultural potential of the project site and the residential and coanmcrciai uses located in the Kealakekua area: The construction of approximately 100 agricultural lots and related farm dwellings. related infrastructure improvements, trails, signs and landscape improvements associated with inlplemenlition of an archaeological preservation program within the Agriculture 1 -acre (A -la) zoned district will be cot)sistcrnt with the general purpose of the "Zoning Code and the Gcneral Plan, provided adequate mitigating conditions are tile(. The subject request will be compatible with the proposed golf course development in maintaining the current open character of the surrounding area to the north, south and west (makai) along with its natural acid scenic qualities. The proposed development would. therefore, be consistent with tine policies of the 1-1ousing. Lurid Use Agriculture, Recreation and Open Space elements of cite General Plan which state that recreational facilities in the County shall reflect the natural, historic and cultural character of the area, and that the housing. agriculture and recreational use should be compatible will) the adjacent areas. Another criteria for reviewing the SMA Use Permit is that, "'me devcIopn)cnt will nut have any significant adverse environtnen(al or ecological effect, except as such adverse effect is rllininU7.etl to the extent practicable and clearly clutweighed fly public he:tlih, sarc(y ter compelling public interest. Stich adveaxc: O'ecrs shall include. 1,111 nut limiled it). the Putcntial cumulative impact of individual develupmcl►ts. cac:ll ut' which taken itt'itselI'll libl►t not have a substantial adverse effect and elimination of planning op(icns." The proposed development is part of the Villages at 1.lokukano master planned comrllunity. The preliminary development plan includes a 27 -holt golf course. eluUhutlse and related facilities. a future members lodge with up to 80 -units, an approxirllatcly 1.10 acre coastal park, open space elements and conm)unity facilities; at1J approximately 730 agricultural tuts with associated dwelling and agricultural uses, including appl'oxilllately 100 lots within the SMA. The proposed developmetnt is not anticipated to have any sul)slall(IaI adverse environmental or ecological effects. Surveys conducted for biological resources, historic Ind cultural resources, visual irn)pacts, public access and rccrea(ion aspects and socio-economic impacts support this conclusion. The goals and objectives of the SMA with respect to coastal, recrcational, scenic, histuric and economic resuul*Ces can be met with an approval with conditions. J The rroDosetl rlrtiiect will nut have anv adverse himac•t W- cultural or historic al rc;t1urcce witltitl flit,' rfOlect alga An archaeulucical inventory cturvry ul tine el►tile �'tul:�s•c•: "Dick" I:rye, Project Manager Oceanside Partners 3 at I (okukano Project site located 408 Sites and site complexes. Of this -total. 161 of ll►cse silos are recommended for preservation, 17 sites are recommended fur selective preservation, and 228 sites are recommended to be available for data recovery and 2 recommended for no further study. Sites intended for selective preservation include portion of the Kilakini Wall (listinguishable portions of tl,e King's `frail or Ala Loa, the railroad bed and tale al►upua'a boundary walls. Preservation is recornmcnded for all coi►firu►cd burial sites, all .confirmed and probable heiaus, and all major lava tubes. The applicant intends to preserve the King's 'frail or Ala Loa in its present location, with some; modifications, including possible breaches, as approved by the Planning Director in consultation with clic State Department of I .-nd and Natural Resources (DLNR). Possible burials, if not preserved "as is," will be treated in a manner as Prescribed by the DL.NIZ-Historic Prescrvatioll Division. A detailed archaeological mitigation and interpretation plan, meeting with the approval of tilt: Planning i)cpartrncnt in consull:ttion with the DLNR-Ilistoric Preservatio,t i)ivision, is recommended prier to the submittal of plans for subdivision review or any laud alteration activities.. The project site is situated east (mauka) of the Conservation District which extends alwtg clic Shoreline and will be retained as a coastal park. The proposed agricultural lots will he further buffered from (lie shore by the proposed gulf course, which was previously apltftwcd by the Planning Commission. Potential negative iutp,tcts on ct,astal waters during site preparation and construction can be mitigmed thtaugh compliance with existing ordinances and regulations. Runoff or discharge generated by tate proposed subdivision development which could reach ocean waters can be handled by un -site drainaye irnproverncnts meeting will, ilia approval of the Deparunent of Public Works. Wastewater generated by the project will be disposed of within a wastewater treatment sysectu mccting with the approval of the Department of Ifcalth. To further ensure that no significant :►dverse i,nP,ets to coastal syste,ns are generated, a groundwater and coastal water monitoring plati(s) will be required. Vicwplancs within the area will not be significantly affected by tae proposed improvements. The visual character of the sulajcct arca and lite areas directly mauka will be It,w profile, with, landscaped dwellings integrated with compatible agricultural uses. The coastal area within the State Land Use Conservation District is platmed to remain primarily as a natural open space with minimal improvements to support park activities. To further ensure that viewplanes will not be adversely impacted, all cicctric:+l and communication systems will be placed underground with the exception of the 69 KV trans►uission line front the Matualahoa Highway to the proposed substation site. Uscd on the forcgt,i„ g, the propuseil construction of portions of an agricultural subdivision and other related improvcments will not have., substantial adverse impact on the surrounding arca. nor will its approval be contrary to the objectives and policies of C'haptcr 205-A, I IRS, relating to Coastal Zone Management and Rule 9 of the I'lannino Commission relating to the Special Management Area. %pproval of this request is subject to the following conditions: ! . The applicant, successors oft assigns shall be responsible for complying will, all of the stated conditions of approval: 1 t "Dick" Frye, Project Manager '0 Oceanside Partners .be 4 2. The applicant shall indemnify and hull the County of Ilawaii harmless from and against any loss, liability, claim or demand for the property damage, personal injury or death arising out of any act or omission of the applicant, its successors or assigns, officers, employees, contractors and agents under this permit or relating to or connected with the approval of this permit. 3. The effective date of this Special Management Arca Use Permit shall be the effective date of the Change of 'Lo(je. 4. An archaeological nnitibation ane! itterprctatiun 1)1an shall be prepared and suhntit(cd for approval by the Plannhig i)irector, in ccncultation will, clic Depar(ritent of l acid and Natural kesuurces-Historic Preservation Division and Ilawaiian coriiniuiiity organiZatiorts. prior to submitting plans for plan approval review. 1'11e flan sluill consist of three suhlnlalns; (A) an archaeological data recovery Llan for the sites to undergo data recovery, (!I) a detailed interim protection/preservation plan for the sites to undergo preservation, and (C) an interpretation plan which shall include buffer zones, s191ia9c, and long-range preservation concerns which may be submitted at a later date. Approved mitigation nicasures shill be implentetitcd prior to or in conjunction with any land alteration activity within the project area. The Plan sliall also include a detailed map of latowrt lava tube/cave systems located within the project site and mitigative measures to ensure that the proposed development does not impact tlic;se cave systcetis. 5. Should any unidentified sites or remains, such as lava tubes, ariffacts, shell, bone or charcoal deposits, humatt burials, rock or coral alignments, pavin>s sir kill be encountered. work in the affected area shall cease, and tits t'l:hitting Director immediately notified. Suhseciuem work shall proceed upon an archacutogical clearance front the Planning Director when it finds that sufficient mitigative measures have been taken. 6. A Natural Resources Management flan c1i311 he submitted fur review and approval by (fie Planning Director, its consultation with the Department cil l.:md and Natutal Resources, prior to securing Final Subdivision Approval 7. A detailed drainage s(tuly sliall he prepared by the applican fur l-eview acid appruval by the Department t)f Public Works prior to submittal of plans for Subdivision Approval review of the agricultural subdivision. A drainage system shall be hisuilled meeting with the approval of Elie Department of Public Works, prior to securing final Subdivision Approval. 8. Use of pesticides and herbicides in cunjunc (iuu with all phases of operatir,n shrill conform with the applicable regulations of the appropriate e(Werniiiciit avelit i— • It. 'f. "Dick" Frye. Project Manager � Oceanside Partners .S 9. During construction, nlcasuren ill. be .I;erl to niinimizc the potential of boUl fugitive dust and runoff sedih, tion. Such rtleasures shall be in compliance with culls(Riction industry standard, -d practices utilized during eollstruetioll projects of the State of Ilawaii. 10. friar to Filial Subdivision Approval of any (ands withitl tile.hrujcct site, ,►rl Overall tuor,i(orinb Ulan wt the Po(Clttial pollu(iutl of groundwater and coastal waters shall be Submitted to tl,e planning Dircctor for approval ill cunsultation with (be State Deliartrrlc(lt of I Icaltll. 11. All cicctr'ical and cotrinuttlication utilities and sys(cnts witlliu clic project cite sh:lll Ile placed undergrutnld, will, (fie exception of the main 69 KV (ratlsmissiurt line from the Matltalaltoa Righway ,to the proposed electrical substation site. 12. A wastewater dispusal System shall be cotlstruc(cd it, a manner, nlceti(lg with the approval of the State Department of Ilealdi and/or t(te 0cl,arttllcut of Public; Works, wlliChcvcr is alll)licat)lc. 13. An aminal progress rchort shall be suhmiucd to (lie. M:unting Director' prior to each anniversary (late of (lie appt'ovAl of dais perrilit. The ccput't shall illcitide. but nut be limited tui (Ile status of (lie dcvclul)lllcllt :rt,d to what c7(tctlt (lie conditions of approval arc bcitlg complied with. This corldilioll shall remain ill effect until all of (lie conditions of approval have been cumplied will' and tile; [Tanning Director acknowledges that farther reports arc not required. lel. Art extension of tinge cur the performance of conditions witlliu this hcrtllit rrlay he granted by (he Planning Director upon the fullowing circuntstanccS: (A) lite non Imi-rorm:utce is lite restul( of cutldiliuns Sha( could nul !lave bee ll foreseen or are beyond lite cuntlul of (Its applicant, Successors ur ac�ib,ts, :uttl (flat are not the result of their fault or negligence; (l.l) Kran"119 of the time extension would mil be cuntral'y to the Cencral Plan or Zoning Code; (C) Kran(ing of rile tiule extension would not be contrary (o the original reasotls for the granting of Ulis licrnlit; (D) the time extcnsiun granted shall be fur a pet iod t►ut to exceed the periud originally gratncd for. performance (i.e., a conJitiotl to be performed within one year tray be extended fur up to one additional year). Should any of Ute collditiorts not be tact or substantially complied with ill a timely fashion, the Director shall initiate procedures to revoke this permit. his approval does rlgl, however, sanctiotilhe specific �llans subutiucJ will, the apl,lica(iou.as they 1), be subject to clt:ttlge given specific code and regulatury retluireuleuts of tits aflccted agencies. A. T. 'Dick- Fryc, Projcct Managcr 1250 Oceanside Partners Pagc 6 Should you have any questions. please feel free to contact Alice Kawaha or Su. -,an Gagorik of the Planning Dcpanmcrit at 961-8288. Sincerely, ::d wa rd E. Crook, Cha imian 'fanning Commission '.K:syw Occxnol.PC c: Honorahl.c Stcphen K. Yatnashiro, Mayor Planning Director Dcpartrimcnt of Public Works Department of Water Supply County Rcal Property Tax Division West Hawaii Office Office of state Planning. CZ.M Program w/background Department of Land and Natural Resources, Historic Preservation Division Plan Approval Section Mr. Jamcs Uonard/PBR Hawaii Department of Hcalth COUNTY OF HAWAII STATE OF HAWAII BILL NO. 373 —�- ORDINANCE NO. 97 36 AN ORDNANCE AMENDING SECTION 25-88 (SOUTH KONA ZONE MAP), ARTICLE 3. CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE. BY CHANGING THE DISTRICT CLASSIFICA71ON FROM AGRICULTURAL (A -la) TO RESORT (V_6.0) AT i:EEKEE 2nd, ILiKAHI. KANAKAU 1st and 2nd, and KALUKALU Ist. 2nd and 3rd, SOUTH KONA, HAWAII, COVERED BY TAX MAP KEY 8-1-04:PORTION OF 3. BE IT ORDAINED BY THE, COUNCIL OF THE COUNTY OF HAWAll: SECTION 1. Section 25-88, Article 3, Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of property described hercinahcr as follows: The district classification of the following subject area situated at Kcckcc 2nd, llikahi, Karnakau 1st and 2nd, and Kalukalu 1st, 2nd and 3rd, South Kona, Hawaii, shall be Resort (v-6.0): Beginning at the Northwesterly corner of this parcel of land at a point bearing 300' 33'20- 399.34 feet from an angle point on the Easterly boundary of the State Land Use Conservation District, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 1.636.3 feet South and 1,386.52 feet East and running by azimuths measured clockwise from True South: Thcnce, for the next fifteen (15) courses following along the remainder of Grant 1745 to John Cavanah: 1. 226' 00' 2. 316" 00' 3. 3539 00' 4. 16" 00' 5. 67" 00' 6. 157' 00' 604.00 feet to a point; 319.00 feet to a point; 80.00 feet to a point; 290.00 I feet to a point; 275.79 feet to a.—)oast; 50.27 feet to a point; EXHIBIT G 7. 670 00' 144.00 feet to a point; S. 337' 00' 174.00 feet to a point; 9. 2470 00' 105.36 feet. to a point; 10. 337" 00' 725.39 feet to a point; 11. 890 00' 447.00 , feet to a point; 12. 157' 00' 238.00 feet to a point; 13. 146' 00' 303.00 feet to a point; 14. 191' 00' 362.00 feet to a point; 15. 1820 42' 30" 255.00 feet to the point of txginrting and containing an area of 14.854 Acres. All as shown on the map attached hereto. marked Exhibit "A^ and by reference made a part hereof SECTION 2. This change in district classification is conditioned upon the following: A. The applicant. its successors or assigns shall be responsible for complying with all of the stated conditions of approval. B. The effectuation of the water cortunitmcnt rights in the'Kealakckua Sourcc Agreement to the current landowners of the subject area wit}1 acceptance of the prevailing facilities charge by the Department of Water Supply of the required water commitment payment shall be in accordance with its "Water Commitment Policy" prior to the issuance of Final Plan Approval. C. Subdivision plans for any portion of the subject arca shall be submitted to the Planning Director and Final Subdivision Approval secured within five (5) years from the effective date of this ordinance. D. Final Plan Approval for the proposed development within the subjcct arca shall be secured within five (5) years from the effective date of this ordinance. E. A wastc%vatcr disposal system for the subject arca shall be constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works. whichever is applicable. F. All electrical and communication lines within the subject arca shall be placed underground. - G. A Flood Study of the subjcct arta shall be submitted to the Planning Director in conjunction with plans submitted for subdivision or plan approval review, whichever occurs first, for any portion of the 14.8 acre area. Drainage improvements shall be constructed meeting with the approval of the Department of Public Works, prior to the issuance of f=inal Subdivision or Plan Approval for the subject area. H. An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director in consultation with the Department of Land and Natural Resources -Historic Preservation Division and Hawaiian community organizations, prior to submitting plans for subdivision or plan approval review, whichever occurs first. The Plan shall consist of three subplans: (1) an archaeological data recovery plan for the sites to undergo data tzcovcry; (2) a detailed interim protection/preservation plan for the sites to undergo preservation; and -3- (3) an interpretation plan which shall include buffer zones, si&nagc and long-range preservation concerns which may be submitted at a later date. Approved mitigation measur,cs shall be implemented prior to or in conjunction with any land alterations within the subject arca 1. Should any unidentified sites or remains such as artifacts, shell, bone, or charcoal deposits. human burials. rock or coral alignments. pavings or walls be cncountcmd, work in the immediate arca shall cease and the Department of Land and Natural Resources-l-iistoric Preservation Division (DLNR-HPD) shall be immediately notified. Subsequent wort: shall proceed upon an archaeological clearance from the DLNR-HPD when the DLNR-HPD finds that sufficicnt mitigative measures have been taken. J. A Solid Waste Management Plan shall be prepared meeting with the approval of the Department of Public Works prior to submitting plans for subdivision or plan approval review, whichever occurs first. The Plan shall include, but not be limited to. the management of construction solid waste as well as operating and domestic solid waste generated by the proposed development within the subject arca Approved recommendations and mitigation measures shall be implemented meeting with the approval of the Department of Public Works. K. Access(es) to the subject arca shall be constructed meeting with the approval of the Department of Public Works. The following roadway improvements bttwccn .Hateki'i Street and the 14.8 -acre subject arca shall be completed in conjunction with the issuance of a certificate of occupancy for any development within the subject arca: (1) tl e . h3nnclization and signal ization .of the project site's Marra,. -boa o Highway-Igalcki'i Street intersection: -4- (3) the extension of Haleki'i Street shall be constructed as an arterial along its general mauka-makai alignment, as shown on Exhibit -B', which phasing of irnprovcmcnts shall be approved by the Deparuncnt of Public Works. If, before the completion and opening of the entire Mamalahoa Highway Bypass, a portion of said bypass is completed and opened, and said portion provides a connection to Halcki'i Street, a barricade or breakaway gate mcct'sng with the requirements of the Department of Public Works, shall be installed by the applicant as pan of the required Halcki`i Street Improvements. The- purpose of this condition is to prevent the use of Halcki'i Street as a vehicular thoroughfare between the existing Mama)ahoa Highway and a portion of the Mamalahoa Highway Bypass until the entire proposed Mamalahoa Highway Bypass between the approximate vicinity of Kcauhou and Capiain Cook has been completed and opened for general public use; (3) the roadway segment from.the Halcki'i Street extension to the subject arca shall be constructed prior to the ccrtiGcate of occupancy for any development within the 14.8 acre subject arca. Also, the Mamalahoa Highway Bypass shall be constructed in its entirety between the approximate vicinity of,Kcauhou and Captain Cook, consisting of two lanes with sufficient right-of-way for a total of four lanes, provided further. that the section of the Mamalahoa Highway Bypass between Keauhou and Halcki'i Street shall be completed and available for public use prior to the issuance of a certificate of occupancy of the proposed development within the subject arca. L• lnfraszructutal improvements as required under Conditions C. E. F, G. 1. and K shall not prohibit the applicant from participating in a Development Agreement or any other agrcemcut tagcthcr with the appropriate bond, surety or other security deemed acceptable by the Planning Dirretor. appropriate agencies or the County -S- Council, whichever is applicable, to ensure the provision of necessary infrastructural improvements to suppOn the proposed development'in a timely manner. M. The applicant shall establish a program for crtiploycc housing which shall be submitted for the review and approval of the Planning Director and Housing Agency together with the submittal of plans for Plan Approval for the proposed lodge. The program shall include provisions for on-site or ofi=sitc housing for the employees of the_lodge in an amount to be determined by a study of surrounding housing opportunities and employee needs. The program may also include consideration for other alternatives such as rental housing subsidies or housing allowances. The approval of the program shall be secured prior to the issuance of a certificate of occupancy of the lodge, within the subject arra. N. The applicant shall make its fair shart contribution to mitigate the potential impacts of the proposed development within the subject arca with respect to parks and recreation, fire, solid waste disposal facilities and roads. The amount of the fair share contribution shall be the sum which is the product of multiplying the number of units proposed to be developed by the amounts allocated hereinbelow for each such unit, and shall become duc and payable prior to final plan approval or final subdivision approval, whichever occurs first. for any portion of the subject area or its increments. If the subject arca is developed in two or more increments. the amount, of the fair share contribution due and payable prior to final plan approval of each increment shall be a sum calculated in the same marurer according to the number of proposed units in each such increment. The fair share contribution may be in a form of cash. land, facilities, or any combination thereof acceptable to the Planning Director in consultation with the affected agencies. The fair share contribution shall have a maximum eomb:ncd value of $7,963.90 per resort unit. Based upon the applicant's representation of intent to develop up to 80 units. the indicated -6- total fair share contribution is S637,272.00. However, the total amount shall be increased or reduced in proportion with the actual number of lots/units according to the calculation and payment provisions set forth in this Condition N. The fair share contribution shall be allocated as follows: 1. S1.942.74 per resort unit for an indicated total of S155.419.20 to the County to support hark and recreational improvements and facilitics: 2. 587.99 per resort unit or an indicatcd total of $7.039.20 to the County, to support fire facilitics: 3. 543.02 per resort unit for an indicated total of S3,441.60 to the County to support solid waste facilities; 4• S5.892.15 per resort unit for an indicated total of 5471,372.00 to the State or County to support road and traffic improvements. The fair share contributions described above shall be adjusted annually beginning three years after the effective date of the change of zone, based on the percentage change in the Honolulu Consumer Price Index (HCPI). In lieu of paying the fair share contribution, the applicant may construct and contribute land. improvements/facilities related to parks and recreation, fur, solid waste disposal facilities. and roads within the region. impacted by the proposed development, subject to the approval of the Planning Director. The cost of constructing the improvements and the fair market value of land contributed required in Condition K shall be credited against the sum specified in Condition NM for road and traffic improvements. For purposes of administering Condition N. the fair market value of land contributed or the cost of any improvements required or trade in lieu of the fair share contribution shall be -7- subject to the review and approval of the Planning Director, upon consultation with the appropriate agencies. O. Comply with all applicable laws, rules, regulations and requirements. including those of the Deparrrnent of Health, Fire Department and the Department of Water Supply. P. Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited toward the requirements of the Unified Impact Fees Ordinance. Q• An annual progress repon shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of Zone. The report shall address in detail the status of the development and the compliance with the conditions; of approval. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports arc not required. R- An initial extension of time for the performance of conditions within the ordinance, with the exception of Condition B. may be granted by the Planning Director upon the following circumstances: (1) The non-perforrnanec is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, and that is not the result of their fault or negligence. (z) Granting of the time extension %would not be contrary to the General Plan or Zoning Code. 1.19 (3) Granting of the time extension would -not be contrary to the original reasons for the granting of the change of zone. (4) The time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year). S. Should any of the conditions not be met or substantially complied within a timely fashion, the Director may initiate rezoning of the subject arra to its original or more appropriate designation. SECTION 3. In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 4. This ordinance shall take effect upon its.approval. INTRODUCED BY: O IL MEMBER, COUNTY OF HAWAII Hilo, Hawaii Date of Introduction: Date of Ist Reading: Date of 2nd Reading: Effective Date: February 19, 1997 Febxvazy 19, 1997 March 7, 1997 Ma zx:h 13, 3997 APPROVED AS TO FORM AND LEGALITY DUTY CORPORATION COUNSEL DATED: 3/�c;/F 7 -9- & lisle, ih�t irp �Ij�fl:- �..,, ; ■� tort 1.66.33 S - J 1.3ae.sz E AGRICULTURAL, uv of-u►u' ® L, (A --1a) TO RE50R7 (V--6.0) AREA: 1.x.854 ACRES s c uftAI ---- i AMENDMENT TO THE ZONING CODE AMENDING SECTION 25-88 (SOUTH KONA ZONE MAP) ARTICLE 3. CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE. 8Y CHANGING THE DISTRICT CLASSIFICATION FROM AGRICULTURAL (A -1a) TO RESORT (V-6.0) AT KEEKEE ZNO, IUKAHI. KANAKAU IST AND 2NO AND KALUKALU 1ST, 2ND ANO 3R0, SOUTH KONA. HAWAII. PREPARED RY : PLANNING DEPARTMENT TRK COUNTY OF HAWAII O-- _ a:PORTON or EXHialT .4- - OCTOBER D. �flfl6 $Oct-rswc $t.- — .a OFFICE OFTHE COUNTY CL),�X County of Ha.raB Hilo Ncv'. 5 97 MR. 13 PP1 2 17 ROLL CAL - "— �C:t"1�� �_�_r 1 Lntroduced By: Baty Jean Liethezci-Todd Rctvmcd: AYES Date lntroduccd. Febzvary 19, 1997 Ara ki X First Rzadins: _Feb 19 1997 Chung x Pub4shed: Feb Zg• 1997 Lei thead-Todd X Ray X RE 4AP,XS: Reynolds --[--X Sr.ond Reading: March 7, 2997 To Mayo- March 7 1997 Rctvmcd: 1997 Effccdve: iSMr 13, 1997 Published H rch 21, 1997 _KV- IRKS:. I DO HEREBY CER77FY that the foregoing $ILL was adopted by the County Council and published as ind:Cated above APPROVED AS TO F AND LE I7Y: DEPUTY CORPORATION COUNSU C CIL CHAIR*4AAt COUNTY OF HAWAII COUNTY CLERK pl'rov/Dz„_______ , this l `may 19�_, Santaneelo Srai th x iy 1 er==f x rraeonr ,. �v 'OR. COUNj^Y f MA W. 1 -r FIEREBY' CERTIFY that above Io . true and correct copy of the original now on file in guy office. Bill No: 373 (Draft S ) Rrle,rc"C'.. C-1474/1996/PC-27 Ord. IVo� k COUNTY OF HAWAII STATE OF HAWAII RESOLUTION NO. - 244 98 (Draft 3) A RESOLUTION AUTHORIZING THE COUNTY OF HAWAII TO ENTER INTO A DEVELOPMENT AGREEMENT WITH 1250 OCEANSIDE PARTNERS. WHEREAS, the Hawaii State Legislature, under section 46-123, Hawaii Revised Statutes, granted authorization to the County of Hawaii (County) to enact an ordinance authorizing the executive branch of the County to enter into a development agreement with any person having a legal or equitable interest in real property for the development of such property; and WHEREAS, pursuant to 46-123, Hawaii Revised Statutes, the Hawaii County Council enacted Ordinance No. 93-37 (Chapter 30, Hawaii County Code) establishing the requirements for Development Agreements, which ordinance was passed into law on April 27, 1993; and WHEREAS, pursuant to Section 46-123, Hawaii Revised Statutes, and Chapter 30, Hawaii County Code, the County adopted rules governing Development Agreements on May 16, 1995; and WHEREAS, 1250 Oceanside Partners, a Hawaii limited partnership, dba Oceanside 1250 (Oceanside) is the owner in fee simple and lessee of certain lands situated in North and South Kona, Hawaii County, Hawaii, TMK: (3)7-9-12:03, (3) 7-9-12:04, (3)7-9-12:11 and (3)8-1-04:03 (por) (" Property") and more particularly described in Exhibit "A", as modified, of the Development Agreement (Oceanside Development Agreement), which is attached hereto and incorporated herein; and WHEREAS, Oceanside or its related entity, affiliate or subsidiary, plans to develop the Property and has submitted a development agreement and application to the Office of the Mayor; and WHEREAS, Oceanside's development will provide many public benefits to the County through the zoning, Special Management Area conditions of approval, and the imposition of on - and off-site development requirements; and WHEREAS, pursuant to Section 30-5(d), Hawaii County Code, the Mayor, through the Planning Director, has submitted a final draft of the Oceanside Development Agreement to the County Council for its action; and WHEREAS, pursuant to Section 304(b), Hawaii County Code, the Mayor may enter into development agreements on behalf of the County; and. EXHIBIT _ WHEREAS, pursuant to Section 30-5(0, Hawaii County Code, a public hearing was held by the County Council on March 18, 1998 and continued on March 30, 1998 at the Kona Surf Resort and Country Club, which is located in the Council district affected by the proposed development. NOW, THEREFORE, BE 1T RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that the provisions of the Oceanside Development Agreement are consistent with the County General Plan, as amended. BE IT FURTHER RESOLVED.that the County Council hereby approves the Oceanside Development Agreement as submitted in accordance with Section 30-5(d) of the Hawaii County Code, and as further modified by the County Council. BE IT FURTHER RESOLVED that the Honorable Stephen K. Yamashiro, or his designee, is hereby authorized to execute said Oceanside Development Agreement, as modified, on behalf of the County. BE IT FINALLY RESOLVED that the County Clerk is hereby directed to forward copies of this Resolution to the Honorable Stephen K. Yamashiro, Mayor of the County of Hawaii and 1250 Oceanside Partners. Dated at Hilo, Hawaii this 1st day of _ Apri 1 ,1998. INTRODUCED BY: ,COUNCIL MEMBER, COUNTY OF HAWAII COUNTY COUNCIL ROLL CALL VOTE County of Hawaii Hilo, Hawaii I hereby certify that the foregoing RESOLUTION was by the ote indicated to the right hereof adopted by the COUNCIL of the County of Hawaii on April 1, 1998 ATTEST: COUNTY CLERK 'F ICER Reference C-759 _ 10 RESOLUTION NO. 2-44-98 ( DRAFT 3) AYES NOES ABS EX ARAKAKI X CHUNG X LEITIiEA0.TUDU X RAY X REYNOLDS X SANTANGELO X SMITH X TYLER X YAGONG X 8 1 0 0 Reference C-759 _ 10 RESOLUTION NO. 2-44-98 ( DRAFT 3) }•! 1. j 11. � � j � �� � 1 ��,. �\`� 'ri•I� moi; � `.�..� `r '�.... �r,e . SII •� �• '1 •1, . i••: � •�� � � _ � 1 ti I,J�' �j.' ."� ♦1' • _ ..?•.J ��' i •: �. Z. it � ; �t'' l '1;� , ` j ' .�1.:� �•. .I�Lt^It' 1•� � J _ • 1 :i��• t •a.`i Tic d • .. :1 141. CC 1 Ac is I• I ` �• j s ; 1 , � Q O V l � .. i fI; I• • 1 r � J ; a• _ 1 ' • �•1 • 1 I s 3 b J • �� 1 � Q h�� 1 v u V u t 1 1� ti I t V : n• �! 1 1 8- -0:031 12 4.6 ;'AC " FEE kj I 1 J � t" • � e\n� , � o Z t t MLEASE AREA EXHIBIT K w 00 LAND COURT SYSTEM After Recordation. Return by Mail REGULAR Sy; 1 • Pickup ( ) ACKERMAN RANCH INC. P. O. BOX SSS TG: ACCOM KEALAKEKUA, HI 96750 TGE:.881010819 ATTN: JAMES J. ACKERMAN LILY_BRUNKE TITLE OF DOCUMENT: PARTIES TO DOCUMENT: MEMORANDUM OF DEVELOPMENT LEASE ACKERMAN RANCH, INC., Lessor LYLE ANDERSON, Lessee PROPERTY DESCRIPTION: LIBER/PAGE: • DOCUMENT NO.: TRANSFER CERTIFICATE OF TITLE NO(S).: CL EXHIBIT L MEMORANDUM OF DEVELOPMENT LEASE THIS INDENTURE made this �� day of ((t 19 Ste{ b between nd ACKERMAN RANCH, INC., a Hawaii corporation, hose principal Placeofbusiness is in Kealakekua, Hawaii and whose post office address P.O. Box 555, Kealakekua, Hawaii 96150, hereinafter called the "Lessor" is LYLE ANDERSON, husband of Kerri Anderson, whose principal end p p place of business and post office address is 1313 N. Scottsdale Road, Suite C226, Scottsdale, Arizona 85253, hereinafter called the "Lessee". W I T N E SIS E T H: That in consideration of their mutual covenants and agreements, the Lessor does hereby demise and lease unto the Lessee, and the Lessee does hereby accept and lease from the Lessor the property described in Exhibit "A" attached hereto (herein the "Property"); TO HAVE AND TO HOLD the same for the term and upon the rents, covenants, agreements and conditions contained in that certain unrecorded Development Lease between the parties dated as of July 28, 1989, all of the provisions of which are incorporated by reference. This Memorandum of Lease is executed for the purpose of giving notice of the existence of the Development Lease. Reference is made to the Development Lease, as it may now or hereafter be amended, for the full description of the rights and duties of the Lessor and the Lessee. This Memorandum of Development Lease shall not affect the terms and conditions of the Development Lease, as now or hereafter amended, or the interpretation of the rights and duties of Lessor and Lessee under the Development Lease. The Development Lease further grants to the Lessee the following rights, privileges and powers: A. DEVELOPMENT OF PROPERTY (1) Permits and Governmental ADDrovals. The Lessee may file all applications and take all actions necessary or desirable to obtain reclassification under the state land use law and changes in or variances of county master and development plans and zoning for all purposes and uses permitted the Lessee under this lease; seek subdivision and consolidation approvals and permits required for the initial subdivision of the Property and subsequent subdivision and development of the Premises; and seek grading, building and other permits necessary for the demolition of existing improvements and the construction of new improvements on the Premises. The Lessor will join into, cooperate with, support and assist the Lessee with all applications for such reclassifications, changes, variances, zoning, subdivisions and permits provided that the Lessee pays all costs as described above. The Lessee shall not be required to 'pay any money to or for the Lessor to obtain the Lessor's cooperation. If and when requested by the Lessee, the Lessor shall execute all applications, consents or other such forms or instruments necessary or desirable to accomplish any of the aforesaid, including, without limitation, obtaining governmental approvals or permits. -2- (2) Dedications by the Lessor. From time to time during the development and subdivision of the Premises and upon receipt of written request from the Lessee. the Lessor will, without the payment of additional compensation, dedicate from the Premises such streets, parks and other improvements for public or private use .as reasonably designated by the Lessee in connection with the development of the Premises, convey portions of the Premises to such public utility companies, governmental agencies or improvement districts as the Lessee shall reasonably designate, including without limitation the well site within a portion of the Property described in Exhibit A. and grant any easements which the Lessee reasonably deems necessary for the respective services. The Lessor shall not encumber its interest in the land or this lease in a manner which shall interfere with such dedication. (3) Power of Attorney. The Lessor irrevocably, for the term of the lease, makes and appoints the Lessee (and his successors and assigns) his attorney-in-fact to do and accomplish for and on behalf of the Lessor the following: (a) In order to facilitate the applications, actions and approvals described in Paragraph A(1) above to sign and deliver any document requiring the Lessor's signature that is related to matters before the Hawaii County Planning Commission, the State Land Use Commission, the Real Estate Commission of the State of Hawaii and any successor to such agencies or other administrative agency from which approvals or permits are required for land use changes, zoning, subdivision or development of the Premises, provided that all plans are in accordance with the uses permitted in Paragraph B below; (b) In order to facilitate the actions described in Paragraph C(l) below, to join in, sign and, deliver the declarations, bylaws and other instruments and amendments thereto and to sign and deliver apartment leases to the extent the Lessor is required to do so by the provisions of the Development Lease; and (c) In order to facilitate the execution and delivery of the covenants, conditions and restrictions described in Paragraph C(2), to sign and deliver the documents containing such covenants, conditions and restrictions. (d) The power provided for in (b) and (c) above shall be exercised only after the intended action has been submitted in writing for review by the Lessor and has been approved by the Lessor in writing or the Lessor has failed to respond either approving or disapproving the proposed action within 20 days of receiving the submittal; provided, however, that no third person shall need to confirm that such approval was obtained in order to rely on an exercise of the power by the Lessee. If requested by the Lessee, the Lessor (and its successors and assigns) shall deliver separate, executed limited powers of attorney containing the same Powers and authority described above. -3- B. USE OF THE PREMISES (1) Specific Use Allowed. The Premises shall be occupied and used by the Lessee for grazing, agriculture and any uses consistent with the "Urban" State Land Use Classification and the Hawaii County Alternate Urban Expansion designations,. including residential and multi -family residential uses, private clubs, resorts, commercial uses, public or private support facilities, golf course, parks and all other similar urban uses. C. CONDOMINIUM DEVELOPMENT, CONDITIONS, COVENANTS AND RESTRICTIONS (1) Submission to Condominium Property Regime. If requested by the Lessee, the Lessor will join into a declaration of condominium property regime ("declaration"), bylaws and other instruments required by law to subject such Tracts as specified by the Lessee to the Condominium Property Act, Chapter 514A, Hawaii Revised Statutes, or any successor law, in order to establish a horizontal property regime for any of the uses permitted under this lease. The Lessor agrees to assent to amendments of the declaration and bylaws of the project and the apartment lease requested by the Lessee, including, without limitation, requests made in order to comply with Law or to incorporate changes which are reasonably required by a mortgagee under a loan commitment to finance the construction of improvements or the purchase of apartments, provided amendments required by mortgagees do not substantially and adversely affect the Lessor's interest under this lease or any replacement lease, or in the Premises. With respect to apartments for which no apartment lease has been issued, the Lessee shall be deemed to be the owner of the apartments for all purposes of the declaration and bylaws. and shall have all rights, privileges and obligations of an owner, including membership and vote in the association. Apartment leases may either be direct leases from the Lessor or subleases under this lease. (2) Covenants and Restrictions; PUD. The Lessor will also, from time to time, join with the Lessee in submitting Tracts or the Premises to covenants, conditions and restrictions not inconsistent with the Development Lease which provide for the development of the area in an orderly and aesthetically pleasing manner and for the maintenance of common areas by a community association or provide for development of portions of the area as planned unit developments. In order to facilitate the execution and delivery of such covenants, conditions and restrictions, the Lessor will irrevocably appoint the Lessee as its attorney-in-fact to sign and deliver such documents containing any such covenants, conditions and restrictions. D. TRANSFERS (1) Assignment and Subletting. The Lessee may assign or sublet or part with possession of all or any part of the Premises without the prior written consent of the Lessor, provided, however that (i) no assignment or sublease of the portion of the Property to be surrendered to the Lessor upon Initial Subdivision (as defined in the Development Lease) shall be made, and (ii) no assignment shall be permitted during the initial five years 'of the term without the Lessor's prior written consent except an assignment to an Affiliate of the Lessee or a partnership in which the Lessee or his Affiliate -4- is a general partner. Upon any assignment or sublease to an Affiliate or Third -Party, a true copy of the assignment or sublease shall be promptly delivered to the Lessor. Upon an assignment of this lease to a Person whose net worth and financial condition is substantial given the nature and the extent of the obligations to be assumed by the assignee, the Lessor shall release the Lessee from all further liability under the lease with respect to the portion assigned. (2) Partial Assignments. The Lessee may assign the lease with respect to a Tract or Tracts on the same conditions as are stated in Paragraph D(1), provided that (i) if the Tract is not a Developed Tract, the Minimum Annual Rent under the partial assignment shall be in the proportion that the area of the Tract or Tracts so assigned bears to the area of Premises immediately prior to assignment, and (ii) if the Tract is a Developed Tract at the time of assignment, the rent shall be determined in accordance with the Development Lease. (3) Consent to Mortgage. The Lessee may from time to time without the consent of the Lessor mortgage this lease to any lender as mortgagee, or become the beneficiary of carryback financing liens with respect to the leasehold interest in connection with assignments of all or portions of this lease. (4) Notices. After receipt_ of an executed copy of a mortgage of the lease, the Lessor shall send the mortgagee a copy of any notice sent by the Lessor to the Lessee pursuant to this lease. (5) Enforcement of Mortgage. A mortgagee of this lease may enforce its mortgage -and acquire title to the leasehold estate in any. lawful way, and pending foreclosure of the mortgage (or pending sale of the lease in lieu of .foreclosure of the mortgage), may take possession of and rent the Premises. Upon foreclosure of the mortgage or assignment in lieu of foreclosure the mortgagee may, without consent of the Lessor, sell and assign the leasehold estate by assignment in which the assignee shall expressly assume and agree to observe and perform all the covenants of the lessee under this lease, and such assignee may make a purchase money mortgage of this lease to the mortgagee or any other Person provided that a true copy of the executed assignment and any mortgage shall be delivered promptly to the Lessor. The mortgagee or any tenant of the mortgagee pending foreclosure shall be liable to perform the obligations imposed on the lessee by this lease only during the period such Person has possession or ownership of the leasehold estate. Nothing contained in the mortgage shall release or be deemed to relieve the Lessee from the full and faithful observance and performance of any covenant and condition contained in the lease and on the Lessee's part to be observed and performed or from any liability for the nonobservance or nonperformance of such covenants or conditions nor a waiver of any rights of the Lessor under the lease. Should there be any conflict between the provisions of this lease and of a mortgage, the former shall control except as hereinabove set forth. (6) Protection of Mortgagee. The Lessor will not exercise the Lessor's right to terminate the lease with respect to all or any portion of the Premises because of any default by the Lessee under the lease if the mortgagee -5- or its assigns, within one hundred twenty days after receipt of written notice from the Lessor of its intention to terminate the lease for any such cause, shall cure such default if the default consists of a failure to make any payments required under the lease. Notwithstanding anything to the contrary in this lease, whenever the leasehold interest is encumbered by a mortgage or deed of trust, this lease shall not be subject to termination with respect to the entire. Premises or any portion of the Premises for any default that does not consist of a failure to make any payments required under the lease, but the Lessor shall continue to have its remedies under the lease as well as the remedy of injunction when. irreparable harm is threatened. Upon foreclosure sale of this lease or assignment in lieu of foreclosure, the time for performance of any obligation of the Lessee then in default not consisting of the failure to pay money shall be extended by the time reasonably necessary to complete such performance with due diligence. The ownership by or for the same Person of both the fee and leasehold estates in the Premises shall not effect the merger of those estates without the prior written consent of mortgagee affected by the merger. any (1) Lessee's Bankruptcy. If a bankruptcy proceeding is commenced by or against the Lessee, the mortgagee shall have the option and the Lessor shall recognize the mortgagee's right, -within the statutory period, to obtain or cause the Lessee or the trustee in bankruptcy to obtain (i) an abandonment of the leasehold estate by the Lessee or the trustee in bankruptcy pursuant to the provisions of the Bankruptcy Code, or any successor law having similar effect, or (ii) an assumption of the lease pursuant to the provisions of the Bankruptcy Code, or any successor law having similar effect. The Lessor agrees, to extend the limitation period for the trustee to assume or reject the lease for a period of not more than sixty days. All such extensions are on the continuing conditions that all rent and other charges under the lease are paid when due. (8) New Lease. If this lease shall terminate prior to the expiration of the term (whether due to bankruptcy of the Lessee, operation of law or otherwise), the mortgagee (or the senior mortgagee, if there is more than one) shall have an option to obtain from the Lessor (i) an instrument recognizing, confirming, and giving legal effect to the continued existence of the lease (the "Lease Confirmation"), or (ii) a new lease of the Premises demised by the lease in favor of the mortgagee or its designee (the "New Lease") upon the following terms and conditions: (a) Within sixty days after the mortgagee receives written notice from the Lessor of the termination of the lease, the mortgagee shall make a written request to the Lessor for a Lease Confirmation or a New Lease, and the mortgagee or its designee shall enter into the applicable document within thirty days after receipt of the document from the Lessor. (b) As a condition to and upon the execution and delivery of the Lease Confirmation or the New Lease, the mortgagee shall pay to the Lessor (i) any and all sums which are then due under the lease (whether or not terminated), (ii) all expenses, including advances made under the lease to protect the Premises and reasonable attorneys' fees incurred by the Lessor in connection with the Lessee's default, the rejection or termination of -6- l this lease and the recovery of possession of the Premises, and (iii) all expenses incurred in the preparation, execution and delivery of the Lease Confirmation or the New Lease. (c) The New Lease shall have a term commencing as of the date of termination of the lease and coinciding with the remaining term of this lease and be at the same rent and upon the same terms, covenants 'and conditions as contained in the lease, as it may have been amended prior to the date of termination, except that the New Lease shall contain the promise of the lessee to indemnify the Les,spr from and against all claims, demands or liability for loss or damage arising out of or in connection with the issuance of the New Lease and to reimburse the Lessor for its costs and expenses, including reasonable attorney's fees, incurred in connection with the defense of any such claims, and the five year provision in Paragraph D(1) shall not be applicable to the New Lease. (d) Concurrently with execution of the New Lease, the Lessor shall assign to the new lessee Lessor's interest in and to any existing subleases, if applicable, the subtenants of which have attornedto and been recognized by the Lessor. During the period between the termination of the lease and the execution of the New Lease, the Lessor shall not amend or modify the subleases or take any action with respect to the demised Premises which will impair the property which is the security for the mortgage. (e) The Lease Confirmation or the New Lease shall have the same priority with respect to any mortgage, lien, charge or encumbrance on the fee of the Premises as the lease had immediately prior to its termination, and the lessee under the New Lease shall have the same right, title and interest in and to the Premises and the buildings and improvements thereon as the Lessee had under the lease immediately prior to its termination; provided, however, that the Lessor makes no representations, warranties or covenants with respect to encumbrances, liens or other matters not within the control of the Lessor that impair or may impair the lessee's right, title and interest under the New Lease; (f) The mortgagee, if it is the. initial new lessee, may assign the New Lease without the Lessor's consent by an assignment in which the assignee shall expressly assume and agree to observe and perform all the .covenants of the lessee under the New Lease, and such assignee may make a purchase money mortgage of the New Lease to the mortgagee. A true copy of the executed assignment and any mortgage shall be delivered promptly to the Lessor. No other or further assignment or mortgage of the New Lease for which the written consent of the Lessor is required shall be made without such consent; (g) If the mortgagee shall demand a New Lease, the Lessor agrees, at the request of, on behalf of, and at the sole expense of the mortgagee to join in any proceedings (and if required by law, to permit any such proceedings to be brought in its name) to oust or remove the original Lessee from the Premises, but not any subtenants actually occupying the Premises who have attorned to and been recognized by the Lessor. -7- (h) The provisions of. this Paragraph D(8) are intended for the exclusive benefit of the mortgagee or any Person acquiring the Lease upon or in lieu of foreclosure of the mortgage and is not intended to and shall not be deemed to, confer any rights or benefits upon the Lessee or the Lessee's trustee in bankruptcy. (i) Mention of this Paragraph, D(8) may be placed of record, and any and all mortgages or other liens, charges or encumbrances on the Lessor's interest in the Premises arising after the date of recordation or filing shall be subordinate to the provisions of this instrument, Any New Lease issued pursuant to the provisions of this instrument shall be prior to any such mortgage or other lien, charge, or encumbrance to the fullest extent permitted by law. (9) Amendment or Surrender of Lease. During the continuance of a mortgage of which the Lessor has notice, no agreement hereafter made between the Lessor and the Lessee amending, correcting or surrendering the lease shall be effective without the prior written consent of the mortgagee. (10) Liability of MortgaRee. (a) No mortgagee of this lease shall be or become liable to the Lessor as an assignee of this lease or otherwise for the payment or performance of any obligation of the Lessee until the holder expressly assumes by written agreement the payment or performance of such obligation. No assumptionof liability shall be inferred from or result from foreclosure or other proceedings in the nature of foreclosure or as a result of any other action or remedy contained in a mortgage, or from a conveyance or assignment pursuant to which any purchaser at foreclosure shall acquire the rights and interests of the Lessee under the terms of this lease. (b) The Lessor and the Lessee agree for the benefit of any holder of a mortgage of this lease that they will not subordinate this lease to any mortgage that may hereafter be placed on the fee interest in the real property which comprises any portion of the Premises or amend or alter any provisions of this lease or consent to any prepayment of any rental or additional rental without securing the written consent of any such mortgagee. E. WELL SITE OPTION (1) During the lease term, the Lessor grants the Lessee an option to acquire twenty thousand square feet of land on the portion of the Property surrendered to the Lessor upon completion of the Initial Subdivision to be used expressly for the purpose of a potable waterwell. The exact location of the well site will be as mutually- agreed upon so as not to unreasonably interfere with the use of Lessor's property when and if the Lessee determines that a well on the Lessor's mauka property is desirable for the Lessee's purposes in developing the Premises. The Lessor understands that in order to obtain potable water, the Well Site must be located at an elevation which is estimated to be between nine hundred and twelve hundred feet above sea level. -8- The Lessee shall have the right to assign this option for the Well Site to the Water Commission of the County of Hawaii and either the Lessor or the County of Hawaii shall have the right to develop a water well with associated required facilities on the' site. In addition to the Well Site, this option shall include the right to easements for access, electric transmission lines and water transmission lines from the Well Site across the Lessor's property to water storage facilities to be built on the Premises or other property of the Lessee. Access to the Well Site shall, to the extent reasonably possible, be across the Lessee's property. The Lessee (1) shall pay all expenses associated with the conveyance and development of the site, (2) shall covenant that any intrusion and disturbance to the Lessor will be minimized, and after construction, shall restore the Lessor's land surrounding the Well Site and transmission lines to even grade and good condition to the extent reasonably possible. The Lessor agrees to cooperate with the Lessee, his agents and the Water Commission of the ,County of Hawaii in the selection, subdivision and development of the site and to give reasonable access for the construction and maintenance of the facility. Access to the Well Site and appurtenant easements and rights of way by the Lessee shall be limited to purposes reasonably related to the construction, use, operation, maintenance, repair and replacement of the well, electric and water transmission facilities and appurtenant facilities. Any determination that this Paragraph E is invalid or unenforceable shall not in any respect affect any other provisions of this lease. (2) The consideration to purchase the Well Site shall be $4.590.00. The consideration shall be.paid in cash upon acquisition of title. F. FIRST REFUSAL TO PURCHASE. (1) If the Lessor shall decide to sell in whole or part its interest in the Property or shall receive a bona fide offer from a Third Party to purchase all or a portion of the Lessor's interest in the Property which the Lessor is willing to accept, the Lessor shall first give. written notice to the Lessee, which notice shall state the price, terms and conditions upon which the Lessor offers its interest in the Property for sale (which price, terms and conditions shall not vary from those of any bona fide, Third -Party offer to Purchase) and which notice shall contain a true copy of the bona fide offer, including the offeror's name and address. Such notice shall constitute an irrevocable offer to sell such interest to the Lessee on the same terms as contained in the notice from the Lessor. If within sixty days from the receipt of the Notice the Lessee shall agree in writing to purchase the land from the Lessor, the Lessor must sell and transfer the land to the Lessee upon the terms and conditions set forth in the notice. If the Lessee does not agree in writing to purchase within the sixty-day period, the Lessor is free to sell and transfer the land to a Third Party, provided, however. that the Lessor shall not make such a transfer at a'price or upon terms or conditions more favorable than those upon which the interest was first offered to the Lessee. If the Lessee agrees to purchase the land, the purchase shall be consummated within sixty days after the date of acceptance by the Lessee, subject to extensions for matters beyond the control of a party. If this lease expires or is terminated in any manneror for any reason, all rights of -9- the Lessee under this Paragraph shall cease, provided, however, that the first refusal right shall continue with respect to lands surrendered to the Lessor pursuant to the Development Lease for the balance of the lease term. This right may not be assigned separately from the Development Lease. This right shall not be exerciseable by the Lessee if he is in default hereunder either at the time the notice is given to the Lessee or on the date for closing the sale. This right does not extend to transfers to the descendants of James and Grace Ackerman, but upon such transfer, this right in favor of the Lessee shall be binding upon said descendants in all respects as it was binding upon the Lessor. IN WITNESS WHEREOF, the parties hereto have executed these presents the day and year first above written. ACKERMAN RANCH, INC., a Hawaii corpor tion B �l (% Y lc--_ .Its President By s Secretary -Treasurer Lessor LYLE WRSON "Lessee" -10- STATE OF HAWAII ) SS. COUNTY OF HAWAII ) On this 72a. day of• -c 196�, before me appeared A. D. ACKERMAN and GRACE B. ACKERMAN, to me personally known, who, being by me duly sworn, did say that they are the President and" Secretary -Treasurer, respectively, of ACKERMAN RANCH, INC., a Hawaii corporation, and that the seal affixed to the foregoing instrument is the corporate seal of said corporation and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors, and said officers acknowledged said instrument to be the free act and deed of said corporation. Notary Public, State of Hawaii My commission expires:_/off-/g—gy STATE OF ARIZONA ) M SS. COUNTY OF On this 12— day of .�, 1920A , before me personally appeared LYLE. ANDERSON, to me kn to be the person described in and who executed the foregoing instrument, and acknowledged that he executed the same as his free act and deed. Fl�-Ilzlrr'A NO -Cary Public, in and for said County and State My commission -11- tWrl S 1 m COO l EXHIBIT -A- All those certain parcels of land at Hokukano 1st, Honuaina 4th and Honuaina 3rd, North Kona, on the Tax Maps for the County of Hawaii as H Tax l Ma designated 7-9-12:5 (approximately 246.75 acres), P Key Nos. 97.4 acres), 7-9-12:11 ) 7-9-12:4 (approximately (approximately 22.664 acres), and 7-9-06:01 (approximately 60.546 acres), together with all buildings, gates, fences, waterlines and other improvements now existing thereon. SUBJECT, HOWEVER, TO: 1. Reservation in favor of the State of Hawaii of all mineral and metallic mines. 2. Unrecorded lease dated January 31, 1981, between Ackerman Ranch, Inc., as Lessor, and Kealakekua Ranch, Ltd., as Lessee, expiring on January 31, 1991. GLW 081689 7052H 1 R /W so' ,FUTURE 24' TRAVEL WAY, 12' MEDIAN 8' SHLDR., ' 6' GUTTER (BY OTHERS) 1 2�� MAX E Ip F0 12. . 8' SHLD.� 5% 7 2" ASPHALT CONCRETE(TYP.) 6" BASALT BASE COURSE(TYP.)- I F4E: BYPSECT 120' 2 4' TRAVEL WAY 2% --._ R/W r 8' 6' 10' SHLD. 6: 1 1:1 MAX. 6;1 PREFERRED 4" ASPHALT CONCRETE 8" BASALT BASE COURSE 6" BASALT SUBBASE COURSE BYPASS HIGHWAY SECTION SCALE: NTS EXHIBIT M R/W 2' 18' SWALE t 6'. PR 8' 10' 12' ' 12' 10' SHLD. PAVEMENT PAVEMENT SHLD. R/W 18' 2' SWALE 2" ASPHALT CONCRETE(TYP.) 6" BASALT BASE COURSE(TYP.) 4" ASPHALT CONCRETE 8" BASALT BASE COURSE 6" BASALT SUBBASE COURSE BYPASS HIGHWAY SECTION STA 245± - STA 275± SCALE: NTS EXHIBIT M 0 Mr. Richard Frye Oceanside 1250 74-5620A Palani Road Suite 200 Kailua-Kona, Hawaii 96740 Re: TMK Nos: (3) 7-9-12:, 04 (3) 7-9-12: 11 (3) 8-1-04: 03 (3) 8-1-04: 56 Dear Mr. Frye: • This letter is to acknowledge that .1250 Oceanside Partners, a Hawaii limited partnership, dba OCEANSIDE 1250 has obtained or acquired ownership or control of the Rights) -of -Way for the entire length of the Bypass Highway and has satisfied the requirements as described in Paragraph 13 of that certain Development Agreement dated entered into by and between OCEANSIDE 1250 and the County of Hawaii. OCEANSIDE 1250 is hereby released from all further responsibilities and, obligations with respect to said segment of the Bypass Highway. Very truly yours, COUNTY OF HAWAII EXHIBIT N PAP 'EXHIBIT 0 Allocation of Fair -Shan essments for the Proposed Ma Bypass Road O(a 3� oUQ obi I O 0 O U 'o C:= t° -)0 sic ori O(a ... ��a��'/�'a oUQ O . s Ca 2/Avi 2UCa M ri' sic O O .r - cc N INC 0 Cu E / O N OUm -0 cny� 0WIR0 = U w U N 2. a r. PARSONS QRINCKERNOFF EXHIBIT PAP - i EXHIBIT Q COASTLINE PARK 717 IL COASTLINE PARK EXHIBIT K 717 _4 EXHIBIT K COUNT F HAWAII STATE OF HAWAII BILL NO, 182 (Draft ORDINANCE NO. 94 3 AN ORDINANCE AMENDING SECTION 25-87 (NORTH KONA ZONE MAP SECTION 25-88 (SOUTH KONA ZONE MAp), ) AND CHA (ZONING CODE) OF THE HAWAII COUNTY CODETIBYEC3HANG NGTTR-`'25 DISTRICT CLASSIFICATION FROM AGRICULTURAL, (A -5a) AND UNPLANNED (U) TO AGRICULTURAL HOKUKANO 1ST AND 2ND, (A -la) AT HOI1t1AIN0 3RD AND 4TH, AND 2ND., ILIKAHI, KANAKAUAISTE,4NpT2NDD 2ND, HALEKII, KAI�UKALU 1ST, 2ND AND IST 3RD AND ONOULI 1ST, NORTH AND SOUTH KONA, HAWAIIERED TP-{ MAP KEY 7-9-06:PORTION OF 1, 7-9-12:POR ONS,OFO3, 4, AND AND 8-1-04:PORTION OF 3. 5 BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Section 25-87, Article 3, Chapter 25Z 5(zoning Code) of the Hawaii County Code, is amended to change the district classification of properties described hereinafter as follows: The district classification of the following area situated at Kanaueue 1st and 2nd, North Kona, Hawaii, shall be Agricultural (A -la): PARCEL 1: Beginning at the Southeasterly corner of this parcel of land, being also a point on the Northerly boundary of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board Of Commissioners for Foreign Missions, eing on the division between North and SouthKonaalso a point coordinates of said point of beginning referredhto Government Survey Triangulation Station "PW OAU- being 1,704.58 feet North and 6,126.02 feet East and running by azimuths measured clockwise from.True South: BXHIBIT 3 r- 1. 710 45' 902.30 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 2. 152" 14' 1,055.02 feet along h nder of Grant 865torJohn Nakookoe toa point; Thence, for the next seven (7) courses following along middle of stonewall and along Grant 992 to W. Whitmarsh: 3. 251" 23' 30" 224.69 feet to a Point; 4. 2500 35' 58.35 feet to a Point; 5. 2550 17' 131.07 feet to a point; 6. 2400 43' 26.91 feet to a Point; 7' 257" 50' 172.57 feet to a Point; 8. 2430 13' 30" 21.91 feet to a Point; 9. 2560 57' 98.95 feet to a point; Thence, for the neat twelve (12) courses following along middle of stonewall and along the remainder of Grant 865 to John Nakookoo: 10. 3380 17' 30" 158.36 feet to a Point; 11. 2570 24' 102.95 feet to a Point; 12. 2550 40' 30"' 171.35 feet to a Point; 13. 2610 29' 101.46 feet to a Point; 14. 3460 30' 30" 54.40 feet to a point; 15. 343" 21' 30" 152.40 feet to a point; 16. 3460 20' 165.46 feet to a point; -2- 41 • 17. 343" 29' 30- 18. 357- 19. 345' 13' 53 30" i 80.88 feet to a point; 57.51 feet to a point; 154.41 feet to a point; 20. 333' 53 • 114.71 feet to a Point; 21. 345' 43' 43.78 feet to the Point beginning and containing an area of 22.25?. Acres, more or less. (Refer to Parcel 1 as shown on Exhibit -A-.) The district classification of the following area situated at Honuaino 3rd and 4th, Hokukano lst and 2nd and Kanaueue lst and 2nd, North Kona, Hawaii, shall be Agricultural (A -la): PARCEL 2: Beginning at the Northwesterly corner of this parcel of land, being also.a point on the Southerly boundary of Royal Patent 1098, Land Commission Award 614 to Charles Hall, the coordinates of said point of beginning to Government Survey Triangulation Station "PUU OHAreferred being 5,408.20 feet North and 934.23 feet East and running by azimuths measured clockwise from True South: Thence, for the neat sixty-seven (67) courses following along middle Of stonewall and along Royal Patent 1098, Land Commission Award 614 to Charles Hall:. 1. 172' 44' 2. 250' 06' 3. 245' 26' 4. 251' 15' 5. 259' 25' 6. 246' 50' MM 35.46 feet to a point; 26.01 feet to a point; 19.20 feet to a point; 39.58 feet to a point; 18.68 feet to a point; 16.35 feet to a point; 40.28 feet to a point; 7.32 feet to a point; 44.32 feet to a point; 16.93 feet to 7. 254" 27' a point; B. 323' 16' 36.61 9. 249" 32' feet to 10. 265" 01' 30- 11. 271" 10' 30" 12. 261' 46` 30" 13. 256' 32' 30" 14. 2620* 38' 91.17 15. 258" 17' feet to a 16. 254" 45' point; 17. 257' 35' 30" 18. 265° 03' feet to a 19. 263' 53' 30" 20. 266' 14' 76.29 21.249' point; 07' feet to a 22. 256" 49' 30" 23. 250' 03' 30" 24. 2570 28' 25. 253" 37' 30" 26. 271' 49' 27. 243" 18' 30" 28. 252" 36' 29. 262" 29' 30. 265" 31' 31. 260' 35' 30- 32. 268" 05' 30" 40.28 feet to a point; 7.32 feet to a point; 44.32 feet to a point; 16.93 feet to a point; 50.61 feet to a point; 67.77 feet to a point; 36.61 feet to a point; 30.23 feet to a point; 37.28 feet to a point; 21.32 feet to a point; 36.22 feet to a point; 21.89 feet to a point; 45.49 feet to a point; .44.43 feet to a point; 32.29 feet to a point; 41.74 feet to a point; 91.17 feet to a point; 88.18 feet to a point; 14.36 feet to a point; 7.86 feet to,a point; 43.30 feet to a point; 45.75 feet to a point; 35.65 feet to a point; 13.70 feet to a point; 76.29 feet to a point; 59.53 feet to a point; -4- -5- 33. 253' 44' 30" 12.40 feet to 34. 259' 40' a point; 25.69 feet to a point; 35. 264 02' 51.71 feet to a point; 36. 259" 49' 30" 85.74 feet to 37. 266'. 56- a point; 48.70 feet to a point; 38. 265' 44' 61.02 feet to a point; 39. 272' 0,5- 60.95 feet to aof P nt; 40. 269' 19' 30" 91.04 feet to .a point; 41. 275' 29' 26.42 feet to aoin P t, 42. 280' S2- 30- 26.76 feet to a point; 43. 272' 21' 30" 28.45 feet to a Point; 44. 2770 12' 46.47 feet to a Point; 45. 273' 22' 30" 84.54 feet to a* point; 46. 273' 04' 30" 57'99 feet to a point; 47. 270' 29' 30.67 feet t0-'- a Point; 48. 275' 46' 30" 91.01 feet to a point; 49. 267' 54' 30" 87.48 feet to a point; 50. 261' 0$' 30" 28.16 feet to a point; 51. 266' 13' . 128.24 feet to a point; 52. 270" 26' 114.47 feet to a point; 53..260" 09' 81.24 feet to a point; 54. 262" 27' 166.66 feet to a point; 55. 261" 47' 108.98 feet to,a point; 56. 243" 34' 33.10 feet to a point; 57. 2590 19. 30" 37.03 feet to a point; 58. 265" 34• 30" 77.10 feet to a point; -5- -6- 59. 262" 59 118.99 feet to a point; 60. 256" 19' 39.78 feet to a point; 61. 262" 44' 82.08 feet to a point; 62. 267' 50' 34.11 feet to a point; 63. 265" 25' 63.09 feet to a point; _ 64. 2730 36' 30" 112.92 feet to a point..- oint:65. 65. 268" 50' 151.03 fest to a point; ' 66. 274' 59' 30" 35.27 feet to a point; 67. 268' 30' 30" 48.40 feet to a point; Thence, for the next three (3) courses following along the Westerly side of old railroad and along the remainder of Grant 2029 to S. W. Makahiki: 68. 15' 00' 431.60 feet to a point; 69. 0" 23' 223.30 feet to a point; 70. 333' 44' 145.20 feet to a point; Thence, for the next seven (7) courses following along the Westerly side of old railroad and along the remainder of Grant 1453 to John Cavanah: 71. 319' 08' 63.63 feet to a point; 72. 327' 12' 30" 92.54 feet to a point; 73. 333' 41' 55.11 feet to a point; 74. 341" 52' 42.41 feet to a Point; 75. 350' 21' 65.77 feet to a Point; 76. 357" 11' 30" 87.84 feet to a -point; 77' 7" 46' 82.65 feet to a Point; -6- ' 1 78' 17' 59• 209.88 feet along the Westerly side of old railroad and along the remainders of Grant 1453 to John Cavanah and Grant 1463 to Keawe to a point; Thence, for the neat ten (10) courses following along the Westerly side of old railroad and along the remainder of Grant 1463 to Keawe: 79. 15' 46' 30" 221.91 feet to a Point; 80. 350' 40' 30" 86.03 feet to a point; 81. 346' 02' 30" 127.39 feet to a point; 82. 347' 43' 68.36 Feet to a point; 83. 356' 37' 108.84 feet to a point; 84. 358' 09' 110.66 feet to a point; 85' 6' 27' 30" 75.31 feet to a point; 86. 357" 30' 30" 143.26 feet to a point; 87• 8' 45' 30" 30.57 feet to'a point; 88. 359' 52' 108.27 feet to a point; 89. 265' 47' 29.79 feet along the remainder of Grant 1463 to Keawe to a point; Thence, for the neat eight (8) courses following along the Easterly side of old railroad and along the remainder of Grant 1463 to Keawe: 90. 357' 33• 107.96 feet to a point; 91. 352' 21' 72.88 feet to a point; 92. 356' 43' 30" 32.40 feet to a point; 93. 353' 27' 38.77 feet to a point; -7- • 94. 350" 36' 29.09 feet to a point; 95. 339' 51' 130.13 feet to a point; 96. 329" 39' 30" 32.22 feet to a point; 97. 326' 06' 51.01 feet to a point; 98. 3240 59' 10.48 feet along the Westerly face of stonewall and along the remainder of Royal Patent 5336, Land Commission Award 9413 to Kahana to a point; 99. 320* 39' 115.81 feet along the remainder of Royal Patent 5336, Land Commission Award 9413 to Kahana to .a point; 100. 6711 26' 30" 92.41 feet along wire fence and along Grant 992 to W. Whitmarsh -to a point; 101. 70' 35' 63.69 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point; 102. 67' 10' 30" 124.47 feet along middle of stonewall and along Grant.992 to W. Whitmarsh to a point; 103. 72" 45 45" 371.54 feet along Grant 992 to W. Whitmarsh to a point; 104. 79' 49' 199.17 feet along Grant 992 to W. Whitmarsh to a point; Thence, for the next twenty-three (23) courses following along middle of stonewall and along Grant 992 to W. Whitmarsh: 105. 82" 05' 30" 51.64 feet to a point; 106. 83" 18' 181.52 feet to a point; IM -9- 0 107• 84" 58' 30" 118.82 feet to a point; 108. 85P 30' 30" 145.13 feet to a point; 109. 91" 09. 79.55 feet to a point; 110. 82' 04' 95.77 feet to a point; 111. 82* 31' 45" 212.72 feet to a point; 112. 359" 15' 512.:1 feet to a point; 113. 268" 21' 280.72 feet to a point; 114. 259' 47' 37.9.67 feet to a point; 115. 260' 53' 149.26 feet to a point; 116. 259' 07' 153.59 feet to a point; 117. 266' 02' 30" 90.63 feet to a point; 118. 250" 32' 115.64 feet to a point; 119. 240° 54' 54.22 feet to a point; 120. 2460 41' 140.89 feet to a point; 121. 256' 30' 30" 95.53 feet to'a point; 122. 2400 04' 30" .52.97 feet to a point; 123. 245' 12' 30" 66.16 feet to a point; 124. 257' 45' 30" 34.33 feet to a point; 125. 239" 59 72.54 feet to a point; 126. 250" 39' 30" 70.76 Feet to a point; 127. 246' 08' 111.93 feet to a point; 128. 332" 14' 1,055.02 feet along the remainder of Grant 865 to John Nakookoo to a point; -9- I Thence, for the neat four (4) courses following along Royal Patent 1670 to John D. -Parish on a portion of Land Commission Award 387 Part 4, Section 2 to American Board of Commissioners for Foreign Missions: 129. 640 12' _ 628.00 feet to a point; 130. 79° 26 602.00 feet to a point; . 131. 77- 00' 987.00 feet to a Point; 132. 720 13' 704.78 feet to a Point; 133. 1540 42' 918.93 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainder of Grant 1587 to John Peters on a curve to the right with a radius of 1,030.00, the chord azimuth and distance being: 134. 1740 32' 30" 699.21 feet to a point; 135. 1940 23' 350.20 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainders of Grant 1587 to John Peters and Grant 1463 to Keawe on a curve to the left with a radius of 1,270.00 feet, the chord azimuth and distance being: 136. 1650 33' 1,224.95 feet to a point; 137. 1360 43' 68.92 feet along the remainder of Grant 1463 to Keawe to a point; -10- Thence, following along the remainder of Grant 1463 to Keawe on a curve to the right with a radius Of 1,030.00 feet, the chord azimuth and distance being: 138. 149' 59' 30" 473.03 feet to a point; 139. 163" 16' 839.35 feet along the remainders of Grant 1463 to Keawe, Grant 1453 to John Cavanah and Grant 2029 to S. W. Makahiki to a point; Thence, 'following along the remainder of Grant 2029 to S. W. Makahiki on a curve to the left with a radius of 470.0o feet, the chord azimuth and distance being: 140. 136' 23' 15" 424.98 feet to a point; 141. 1650 15' 189.91 feet along Grant 1651 to Charles Hall to the Point ofbeginning and containing an area of 295.539 Acres. (Refer to Parcel 2 as shown on Exhibit "A-.) SECTION 2. Section 25-88 Article 3, Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of properties described hereinafter as follows: The district classification of the following area situated at Halekii and Keekee 1st, South Kona, Hawaii, shall be Agricultural (A -la): -11- PARCEL 3: Beginning at the Northeasterly corner of this parcel of land, being also the Northwesterly corner of Lot 39 of Kona Scenic Subdivision, Unit II (File Plan 1591) and being a point on the Southerly boundary of Grant 865 to John Nakookoo, the coordinates of said point of beginning referred to Government Survey Triangulation Station "pUU OHAU" being 2,272.75 feet North, and 8,616.61 feet East and running by azimuths measured clockwise from True South: 1. 350' 44' 55" 482.03 feet along Lots 39, 38, 37; 36, 35 and 34 of Kona Scenic Subdivision, Unit II (File Plan 1591) and along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions and along the Westerly end of Haleki'i Street to a point; 2. 78" 30' 470.15 feet along Lot 3 (Government Land - County of Hawaii) to a point; 3. 348* 30' 438.70 feet along Lot 3 (Government Land - County of Hawaii) to a point; 4.. 266' 28 187.31 feet along Lot 3 (Government Land - County of Hawaii) to a point; Thence, for the neat eleven (11) courses following along middle of stonewall: -12- i i • 46 5. 4" 59' 157.50 feet along Lots 22 nd 21 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 6. 170 24' 30" 102.93 feet along Lots 21 and 20 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 7• 70 45' 30" 174.98 feet along 20 Lots and 19 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 8. 910 17' 30" 56.46 feet along Lot 18 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 9. 355" 54' 30" 333.18 feet along Lots 18 and 17 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; Thence, for the neat four (9) courses following along Grant 866 to Kapule: 10. 860 02' 30" 309.93 feet along Lot 2 to a point; 11. 80" 19' 207.35 feet along Lot l to a point; 12. 750 14' 183.86 feet along Lot 1 to a point; 13. 790 02. 674.13 feet along Lot l to a point; -13- • 14. 177' 38 634.16 feet along the remainder of Grant 977 to Panaunau to a point; 15. 75" 14' 1,338.05 feet along Grant 977 to Panaunau to a point; 16. 150" 55' 956.00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 17. 251" 45' 902.30 feet along Grant 865 to John Nakookoo to a point; Thence, for the next thirty-six (36) courses following along middle of stonewall•and along Grant 865 to John Nakookoo: 18. 250" 02' 30" 41.72 feet to a point; 19. 238" 11' 30" 99.82 feet to a point; 20. 246" 13' 93.37 feet to a point; 21. 253° 29' 121.82 ,feet to a point; 22. 257" 51' 121.61 feet to a point; 23. 2490 33' 59.76 feet to a point; 24. 2450 51' 177.23 feet to a point; 25. 248" 02' 30" 92.17 feet to a point; 26. 240" 26' 30- 60-37 feet to a point; 27.254* 58' 110.46 feet to a point; 28. 258" 29' 24.30 feet to a point; -14- -15- i �► 29. 274- 56' 30. 260" 18' 31. 253" 43' 32. 243" 21' 33. 263" 53' 34. 2540 39' 30" 30" 30" 30" 30" 31.91 feet to 148.31 feet to 47.09 feet to 89.60 feet to 70.49 feet to 21.88 feet to a Point; a Point; a Point; a point; a point; a Point; 35. 2690 41' 41.10 feet to a point; 36. 288' 24' 45.97 feet to a Point; 37. 255 29' 30" 27.38 feet to a point; 38. 241 21- 30.35 feet to a Point; 39. 2270 12' 30" 53.91 feet to a Point; 40. 2160 24' 30" 55.73 feet to a Point; 41. 238" 55' 30".. 27.24 feet to a point; 42. 255' 23' 30" 29.74 feet to a point; 43. 271' 22' 69.73 feet to 'a Point; 94. 265" 45. 2750 46. 2710 47. 277 48. 269' 49. 270" 50. 268" 51. 2580 04' 29' 30" 04' 92' 30" 46' 48' 22' 19' 29.52 feet to a 98.69 feet to a 85.71 feet to a 71.32 feet to a 21.84 feet to a 110.24 feet to a 91.02 feet to a 92.53 feet to a Point; point; Point; point; Point; point; point; point; 52. 270" 26' 57.58 feet to a Po int; -15- 53. 265` 38' 1177.70 feet to the point of beginning and containing an area of 94.387 Acres, more or less. (Refer to Pacel 3 as shown on Exhibit "A".) The district classification of the following area situated at Halekii, Keekee lst and 2nd, Ilikahi, Kanakau 1st and 2nd, Kalukalu lst,.2nd, and 3rd and Onouli 1st, South Kona, Hawaii, shall be Agricultural (A -la): PARCEL 4: Beginning at the Southeasterly corner of this parcel of land, being also a, point on the Northerly boundary of .Grant 1162 to F. O. Schulze, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 4,046.78 feet South and 6,502.93 feet East and running by azimuths measured clockwise from True South: 1. 65' 45' 54" 1,071•.96 feet along middle of stonewall and along Grant 1162 to F. O. Schulze to a point; 2. 780 08' 30" 1,407.43 feet along middle of stonewall and along Grant 1162 to F. O. Schulze to a point; Thence, for the neat three (3) courses following along the remainder of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole: 3. 203" 12' 488.09 feet to a point; Thence, following on a curve to the left with a radius of 870.00 feet, the chord azimuth and distance being: -16- • 4. 172" 50' 30" 879.41 feet to a Point; 5. 142" 29' 272.49 feet to a Point; Thence, following along the remainders of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole, Grant 1160 to H. N. Greenwell, and Grant 1576 to Lohi on a curve to the right with a radius of 1,130.00 feet, the chord azimuth and distance being: 6. 169" 47' 1,036.55 feet to a Point; 7. 197" 05' 307.17 feet along the remainders of Grant 1576 to Lohi and Grant 1464 to Ialua to a point; Thence, following along the remainder of Grant 1464 to Ialua on a curve to the left with a radius of 645.00 feet, the chord azimuth and distance being: 8. 183" 07' 311.35 feet to a point; 9. 1690, 09' 54.98 feet along the remainder of Grant 1464 to Ialua to a point; Thence, following along the remainders of Grant 1464 to Ialua and Grant 1175 to Nakauwaa on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 10. 186" 06' 411.07 feet to a point; -17- -18- 11. 2030 03' 162.63 feet along the remainder of Grant 1175 to Nakauwaa to a point; Thence, following along the remainder of Grant 1.175 to Nakauwaa and Grant 1177 to Kamakahiona on a curve to the left with a radius of 645.00 feet, the chord azimuth and distance being: 12. 186' 42' 30" 362.96 feet to a point; ' 13. 170° 22' 60.05 feet along the remainder of Grant 1177 to Kamakahiona to a point; Thence, following along the remainders of Grant 1177 to Kamakahiona and Grant 1176 to Kini on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 14. 1860 12' 384.70 feet to a point; Thence, for the next five (5) courses following along the remainder of Grant 1176 to Kini: 15. 202" 02' 35.26 feet to a point; Thence, following on a curve to the left with a radius of 30.00 feet, the chord azimuth and distance being: 16. 157" 02' 42.43 feet to a point; 17. 112" 02' 85.32 feet to a point; Thence, following on a curve to the left with a radius of 645.00 feet, the chord azimuth and distance being: 18. 97" 14' 329.53 feet to a point; 19. 82" 26' 397.26 feet to a point; -18- Thence, following along the remainders of Grant to Kini and Royal 1176 Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 20. 118" 34 831.43 feet to a point; 21. 154" 42' 342.97 feet along Of Royal Patent r1670ndtor John D.. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 22. 252' 13' 704.78 feet along Grant 1587 to John Peters and Grant 865 to John Nakookoo to a point; Thence, for the neat three (3) courses following along Grant 865 to John Nakookoo: 23. 2570 00, 987.00 feet to a Point; 24. 259" 26' 602.00 feet to a, point; 25. 244" 12' 628.00 feet to a point; 26. 3300 55- 956.00 feet along the remainder Of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387,' Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; -19- 27. 2550 14' 318. 05 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners 'for Foreign Missions to a point; 28. 3570 38' 634.16 feet along Grant 977 to . Panaunau to a point; 29. 76° 40 30" 1,596.74 feet along Grant 1177 g to - Kamakahiona to a point; 30. 760 40• 30" 44.81 feet along Grant 1177 to Kamakahiona to a point;. Thence, for the next six (6) courses following along the Westerly side of old railroad: 31. 3530 25' 54.23 feet to a point; 32. 346° 06' 95.32 feet to a point; 33. 342° 16' 30" 289.54 feet to a point; 34. 3410 09' 132.29 feet to a point; 35. 345° 33' 48.71 feet along the remainders of Grant 1177 to Kamakahiona and Grant 1175 to Nakauwaa to a point; Thence, for the next six (6) courses following along the remainder'of Grant 1175 to Nakauwaa: 3`6. 350° 55' 30" 47.80 feet to a Point; 37. 260" 45' 8.34 feet to a point; Thence, for the next four (4) courses following along the Westerly face of stonewall and along the Easterly side of old railroad: -20- -21- 38. 353" 43 30" 58.69 feet to a point; 39• 1" 03' 30- 50.75 feet to a point; 40. 4" 06' 30" 32.09 feet to a Point; 41. 9" 18' 30" 46.75 feet to a Point; Thence, for the next four (4) courses following along the Northerly face of _ stonewall: 42. 79' 50' 28.51 feet along Grant 787 to H. N. Greenwell to a point; 43. 63" 01' 30" 205.62 feet along Grant 787 to H. N. Greenwell to a point; Thence, for the next twenty-six (26) courses following along the remainder of Grant 787 to H. N. Greenwell: 44. .58" 15' 190.84 feet to a point; 45. 950 12' 30" 36.26 feet to a point; Thence, for the next ten (10) courses following along the Westerly face of stonewall: 46. 340" 55' 30" 51.47 feet to a point; 97. 336" 12' 30" 95.40 feet to a point; 48. 340" 54' 85.38 feet to a point; 49. 338" 98' 30" 46.81 feet to a point; 50. 342" 23• 65.75 feet to a point; 51. 334" 35' 30- 65.95 feet to a point; 52. 332" 23' 82.87 feet to a point; 53. 324" 00- 11-13 feet to a point; 54.332" 364 30- 113.50 feet to a point; -21- 55. 34'2 43' 24.68.feet to a Point;' Thence, for the next four (4) courses follo,_; ' g along the Westerly side of old railroad: 56. 338" 19' 61.45 feet to a point; 57. 327' 39' 30" 17.91 feet to a point; 58. 347" _ 16' 94.25 feet to a point; 59. 344" 55' 30" 113.58 feet to a point; 60. 2670' 05' 30" 16.83 feet to.a point; Thence, for the next six (6) courses following along -middle of stonewall: 61. 341" 48' 30" 54.25 feet to a point; 62. 346" 24' 30" 109.52 feet to a point; 63. 330" 20' 62.30 feet to a point; 64. 336" 48' 111.89 feet to a point; 65. 325" 21' 106.90 feet to a point; 66. 620 18' 30" 29.22 feet to a point; Thence, for the next three (3) courses following along Westerly face of stonewall: 67, 337" 28' 30" 112.46 feet to a point; 68. 337" o8' 183.98 feet to a point; 69. 337" 36' 3.0" 153.52 feet to a Point; 70. 254" 02' 30" 25.45 feet along the Southerly face of stonewall and along Grant 787 to H. N. Greenwell to.a point; -22- SECTION 3. These changes in district classification are conditioned upon the following: (A) The applicant, successors or assigns shall be responsible for complying with all of the stated conditions of approval; (B) The effective date of the rezoning shall be upon: (1) the execution of an agreement between the applicant, Lyle Anderson, and the County through its Department of Water Supply and Planning, to assign water commitment rights in the Kealakekua Source Agreement -23- s Thence, for the next seven (7) courses following along the Westerly side of old railroad and along the remainder of Royal Patents 4386 and 7146, Land Commission Award 8452 to A.. Keohokalole: 71. 338" 26' 168.87 feet to a point; - 72. 337" 39' 153.12 feet to a point; 73. 335" 16' 30" 329.74 feet to a point; 74. 336° 16' 30" 122.94 feet to a point; 75. 334" 38' 30- 193.93 feet to a Point; 76. 335" 59- 267.46 feet to a point; 77. 329" 13' 30- 141.50 feet to the point of beginning and containing an area of 271.415 Acres. (Refer to Parcel 4 as shown on Exhibit. "A".) All as shown on the map attached hereto, marked Exhibit "A" by reference made a part hereof (herein "subject and, after referred to property"), as SECTION 3. These changes in district classification are conditioned upon the following: (A) The applicant, successors or assigns shall be responsible for complying with all of the stated conditions of approval; (B) The effective date of the rezoning shall be upon: (1) the execution of an agreement between the applicant, Lyle Anderson, and the County through its Department of Water Supply and Planning, to assign water commitment rights in the Kealakekua Source Agreement -23- 1 to the current landowners of the subject property within one -hundred -eighty (180) days f rom the effective date of this ordinance; provided that a maximum ninety (90) day extension may be granted by the Planning Director with reasonable and sufficient justification; and (2) the acceptance by the Departmen� of Water Supply of the required water commitment payment in accordance with its "Water Commitment Policy" within one -hundred -eighty (180) days from the effective date of this ordinance; (C) Subdivision plans for any portion of the subject property shall be submitted to the Planning Department and Tentative Subdivision Approval secured within four4 ( ) years from the effective date of this rezoning as determined in Condition B; Final Subdivision Approval shall be secured within five (5) years from the effective date of this rezoning as determined in Condition B. For the purpose of this ordinance, Final Subdivision Approval shall be defined as the subdivision of any agricultural zoned lot to a lot less than twenty (20) acres in size within the subject property; (D) A wastewater disposal system shall be constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works, whichever is applicable; (E) All electrical and communication utilities Tines within the subject property shall be placed underground, withthe exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site; -24- I (F) A Flood Study of the subject property shall be submit the Planning P � Department in conjunction with ted to for subdivision review for an Plans submitted Y portion of the subject property. Drainage improvements shall be constructed manner meeting with the a in a approval of the Department of Public Works, prior to the issuance of Final Subdivisi Approval for the subject property; on (G) An archaeological mitigation and interpretation plan sha be 'prepared and submitted for a 11 pproval by the Planning Director, in consultation with the Department of Land and Natural Resources -Historic Preservation Division, prior submittin to g plans for subdivision review. The Plan shall consist of three subplans: (1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim protection/preservation plan for the sites to undergo preservation, and (3) an interpretation plan which shall include buffer zones, signage and long-range preservation concerns which may be submitted at a later date. _Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the subject property; (H) The applicant shall be responsible to comply with Condition No. 8 of SMA Permit No. 345 issued to the applicant on November 5, 1993; provided, that the construction of the coastline park and access ways shall be subject to the obtaining of all necessary discretionary permits (e.g., Conservation District Use Approval; Special Management Area Use Permit, etc-); provided, further, that the applicant -25- shall be responsible to comply with the following terms and conditions: (1) The applicant shall develop and.submit a comprehensive public shoreline accesssubj lan for the subject P � Propeerrttyy and the properties described in the SMA Permit No. 345, subject to the review and approval by the Planning Director, in consultation with the Department of Land and Natural Resources, prior to Final Subdivision Approval, or any land alteration activity, whichever comes first;. (2) An area comprising twenty-five percent (250) of the total park area, as shown on Exhibit "E" attached hereto and made a part hereof, shall be developed and improved by the applicant or its agent in phases within five (5) years from the date Final Subdivision Approval is obtained on the subject property. The first phase shall be completed and open to the public within. thirty (30) days following the opening of the golf course; (3) No more than a total land area of twelve (12) acres shall be permitted to be constructed, operated and maintained as part of the applicant's golf course, approved as Use Permit No. 115, and included within the coastline park or the 'existing conservation district lands; (4) A minimum of twenty-five (25) public parking stalls in addition to parking stalls for residents, guests, and employees within the subject property and the appli.cant's adjacent lands at the principal shoreline access parking area(s), signage and provisions for Public access for night fishing and marine food -26- gathering purposes over designated vehicular and pedestrian access routes subject to restrictions which limit said uses to recreation uses only, and other restrictions which provide for the health and of the general safety 4 public and residents alike; and (5) The public shoreline access plan shall also integrate where appropriate, any public accesswayk's) to interpretive trail system(s) and to the historical and archaeological sites to be approved by the Planning Director, in consultation with the Department of Land and Natural Resources and in conjunction with the detail mitigation plan for the park area situated in the Conservation district. (X) Prior to final approval of a small lot subdivision plat within the subject property, the applicant shall convey to the County of Hawaii by way of a perpetual easement the right to public access and recreational use of the coastline park and trails; provided, that restrictions in accordance with Chapter 115, Hawaii Revised Statutes, will be allowed to be established by the applicant, subject to the approval of the Plannin g Director, to promote public health and safety and the general security of the premises for residents and guest of the project to protect the areas' pristine condition, and to minimize any liability to the applicant, pursuant to Chapter 520, Section 520-4, Hawaii Revised Statutes. The applicant shall own the coastline park and trails in fee simple and maintain all lands in the coastline park area and operate such facility for public recreational use in accordance with the above terms and conditions; -27- (J) Should any unidentified sites or remains such as artifacts shell, bone, or charcoal deposits, human burials P • rock or coral alignments, pavin s or walls be encountered g work the immediate area shall cease and the PlanningDirectorin shall be immediately notified. Subsequent work shall proceed upon an archaeologicalclearance from the 1 Planning Director when it finds that sufficient mitigative measures have been taken; (K) A solid waste management plan shall be prepared meeting with the approval of the s Department of Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the subject property. Approved recommendations and mitigation measures shall be implemented at a time and in a manner meeting with the approval of the Department of Public Works; (L) Roadway improvements and access(es) to the subject property, including all plans and construction, shall meet with the approval of the Department of Public Works. Prior to the issuance of Final Subdivision Approval for any portion of the subject property, the applicant shall: (1) construct the channelization and signalization of the Mamalahoa Highway-Haleki'i Street intersection; (2) determine the final right-of-way alignment of the entire Mamalahoa Bypass road as shown in Exhibit 'C", including its intersection areas and its acquired ownership or control. The applicant shall provide the Planning Director with a metes and bounds description of each road right-of-way segment involved and evidence of its ownership or control as deemed -28- i necessary by the Planning Director. In lieu of the applicant obtaining or acquiring ownership or control of any segment within the Phase Two portion of the Mamalahoa Bypass road, the requirement shall be deemed fulfilled u o the county's formal initiation of condemnation action9 r n for such segments and an a reement has been entered into between the applicant and the count to y providing for the applicant's reimbursement to the county for the acquisition Of the lands condemned; (3) construct Phase One of the Mamalahoa Bypass, as shown in Exhibit "C", consisting of two lanes with sufficient right-of-way for a total of four lanes; (4) construct the channelization improvements on Kuakini Highway at its intersection with the north end of the Mamalahoa Bypass; (5) -construct the extension of Haleki-i Street through the subject property as generally reflected in Exhibit which phasing of improvements shall be approved by the Department of Public Works. A barricade or breakaway gate, meeting with the requirements of the Department of Public Works, shall be installed by the applicant as part of the required Haleki'i Street improvements prior to the completion of Phase 1 of the Mamalahoa Highway Bypass or the construction of any dwelling unit or golf .course clubhouse facility, whichever occurs first. The purpose of this condition is to prevent the use of Haleki'i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and the Phase 1 section of the Mamalahoa Highway Bypass until the entire proposed Bypass has been completed and opened for general public use; and -29- (6) provide roadway stub -outs, generally shown in Exhibit to provide future connections between the subject property, the Alii Highway,. and southern extensions there from; provided that such stub -outs shall be constructed in accordance with the construction phasing as approved by the Department of Public Works. The applicant shall construct the Mamalahoa Bypass to State Department of Transportation -Highways Division standards for a- regional arterial bypass highway or segments thereof, and shall provide a landscape buffer along highway sections within five hundred feet of existing dwelling, as required by the chief engineer, to reduce the impacts of noise and light on the residents therein and to generally beautify the highway appearance in such locations. Roadway segments providing the bypass's connection with the existing highways at its north termini shall be built to county dedicable standards for secondary arterials, pursuant to Chatper 23 of the Hawaii County Code, instead of the State DOT standards for major arterials, in the case where the roadway segment is consistent with a Department of Transportation plan which provides for such segments to be a lesser, connector road and for the later extension of the arterial bypass highway to be substantially further north or south before merging with other arterial roadways; provided that the applicant shall enter into a reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction, land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom the county may determine as benefiting from the Bypass Highway and which funds are available to the county for such purpose; and provided further, that the total amount of reimbursement due to the applicant shall not exceed the -30 total cost of land acquisition, design and construction of • the Bypass Highway incurred by the applicant, less rata portion attributed to the subject property; the pro (M) Prior to Final, Subdivision Approval of any portion within Area 2 as shown in Exhibit "D" except for the golf course, golf clubhouse, lodge, and related facilities, the applicant shall: (1) complete the construction of the Phase Two of the Mamalahoa Bypass consisting of two lanes with sufficient right-of-way,for a total of four lanes as shown in Exhibit `C", meeting with the approval of the Department of Public Works, in consultation with the State Department of Transportation -Highways Division; and (2) complete the construction of the Mamalahoa Bypass channelization improvements at its intersection with Mamalonoa Highway and Napo'opo'o Road, meeting with the requirements of the Department of Public Works, in consultation with the State Department of Transportation -Highways Division; (N) All roadway improvements stated in Condition L and M of this ordinance shall be dedicated to the appropriate government entity. Those i"mprovements associated with the Mamalahoa Highway Bypass shall be offered to the State Director of Transportation pursuant to Section 264-1 of the, Hawaii Revised Statutes. Any connector roadways, and any protion of the Mamalahoa Highway Bypass not accepted by the State Director of Transportation shall be dedicated to the County, as provided bylaw; -31- (0) To ensure that the Goals and Policies of the Recreational Element of the General Plan are implemented, the applicant shall provide a maximum of two acres of land abuttin 9 the north side of Kona Scenic Park for public purposes prior to Final Subdivision Approval of the subject property. (P) In lieu of actual construction of infrastructural improvements as required under Conditions D, F, H, IC L and M, the. applicant may enter into an agreement with the Planning Director to assure the county that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable to. the Planning Director and the Corporation Counsel. Upon execution of such agreement and/or filing of the security with the County, Final Subdivision approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements; (Q) The Applicant shall participate in the funding and construction of any regional roadway improvements as may be required by the State Department of Transportation, provided that any costs borne by the applicant shall be credited and limited to the amount of its fair share contribution for regional road and traffic impacts, as required in Conditions L and M; (R) It shall be demonstrated to the satisfaction of the Planning Director that agricultural activity is being conducted on the subdivided lots within three years from the date of Final Subdivision Approval. For the purpose of this condition, -agriculture" shall be defined as the cultivation of crops, including but not limited to flowers, vegetable, foliage, and fruits that are propagated for economic or personal use. An agricultural activity will be considered satisfactory; (1) if such activity is implementing Program for the affected a conservation property(ies) the applicable soil and water cas approved by onservation directors and filed with the Soil Conservation tr�ct Service; (2) if it provides a source of income reside on the to the person(s) wh property;. or o (3) if the property is dedicated for agricul accordance with a tore uses in pplicable Tax Department procedures and that such agriculture dedication shall be m deed covenant and dulyrecorded with made a the State Bureau Of Conveyances and a copy of the recorded deeds sha be filed with the Planning Department within one 11 from the date of Final Subdivision A Year Pproval. Each approved lot must comply with at least one of the above requirements to satisfy the conditions o this ordinance; f approval of (S) Restrictive covenants in the deeds of all the Proposed lots prohibit the construction of.a second dwelling unit on each lot; provided that this shall not preclude construction of a guest hthe ouse as defined under Chapter 25 Of the Hawaii County Code. A copy of the covenant s proposed ( ) to be recorded with the Bureau of Conveyances shall be submitted to the Planning Department for review and approval prior to final subdivision aPproval. A copy Of the approved covenant shall be recited executed b in an instrument Y the applicant and the county and recorded the Bureau of Conveyances likewise prior to final with subdivision approval; -33- (T) The Applicant shall pay its fair share contribution to address potential regional impacts of the subject property with respect to park, fire, police, solid waste disposal facilities, sewer and roads. The fair share contribution shall be initially based on the representations contained within the change of zone application and may be increased or reduced proportionally if the agricultural lot counts are adjusted. The fair share contributions described Below shall be adjusted annually based on the percentage change in the Honolulu Consumer Price Index (HCPI). The fair share contribution for each agricultural zoned lot of the subject property less than ten acres in size shall be based on a maximum density for each lot as determined by the zoning resulting from this change of zone. The fair share contribution in a form of cash, land, facilities, or any combination thereof shall have a maximum combined value of 5 4,701,205.74. In lieu of paying the fair share contribution, the applicant may construct such improvements/facilities related to park, fire, police, solid waste disposal facilities, sewers and roads with the approval of the appropriate agency(ies). Any contributions required by this ordinance that exceed the fair share requirement of this proposed development shall, at the applicant's request be credited towards any of the applicant's future developments that require infrastructural impact contributions; (U) The Applicant shall conform, to the best extent practicable, with the guidelines as provided within the Strategies for Energy Efficient Architecture by Hawaiian Design and the State Model Energy Code, in the construction of dwellings within the subject property; -34- (v) In the event that the State Department of Educatio an educational facilities impact fee n adopts program, the applicant shall participate in the requirements of the program; (W) Comply with all applicable laws, rules, regulations and requirements, including those of the Department of Health, Fire, and the Department of Water Supply; (X) Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included he shall be credited towards the requirements of the Unified Impact Fees Ordinance; (Y) An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone. The report shall address in detail the status of the development and the compliance with the conditions of approval. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required; and, (Z) An extension of time for the performance of conditions within the ordinance, with the exception of Condition C, may be granted by the Planning Director upon the following circumstances: C1) the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, and that are not the result of their fault or negligence; (2) granting of the time extension would not be contrary to the General Plan or Zoning Code; -35- (3) granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; (4') the time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one addi;.ional year); and (S) should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant's request to the County Council for appropriate action. Further, should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate rezoning of the area to its original or more appropriate designation. SECTION 4. In the event that any portion of the ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. -36- SECTION 5. Hilo, Hawaii This ordinance shall take effect upon its approval. INTRODUCED BY: i COUNCIL ME2I-MER, COUNTY O H,gWAII Date of Introduction: May 11, 1994 Date of 1st Reading: May 11, 1994 Date of 2nd Reading: June 15, 1994 Effective Date: June 28, 1994 APPROVED AS TO FORM AND LEGALITY: _ �1,t-rte• ' CORPORATION COUNSEL�J DATED: G & -37- ROBIN J. YAHDCU OFFICE OF THE COIIIJTY CLERK County of Hawaii Hawaii County Building 25 Aupuni Strcrt Wo. Hawaii 96720 CONSTANCE k SIU j BOBBY JEAN LErrXF1l D -1T "r'd��►r ��ib On Bill No. 182, Dr. 6, Ordinance No. 94-73 , reference is made to map attached hereto, marked Exhibit "A_". Said Exhibit is not part of the duplicate copies of this ordinance, due to its size, but is available .for viewing in the Office of the County Clerk. If further information is needed, call -961-8255. ob't J Yahiku LINTY CLERK • r • ' _.t / • .. .�� lye -t\f ! � S / ', � / ` %i(� )i'J i •l( /' iaf' '�'i�!".. 1:. — }t . • � . - 1 i� Yi �• uj Lu ff le til cv 41. Ll \` � ' •• ' / 1. .. '• � Z 1t��, .. � '\. - -�.'� • � ��: �`�' • "rte _ � CD irF�I'i/L- ��re, � ' 1O( .. � `. r tom,,\C` ,• and Rcaning: _ l *ICE OF THE COUNTy 1994 Mayor. _ Jun _ 15, CLER C. – June 28, 1994 xtivc: County of Hawaii .- . July 7. 1994 Hilo , Hawaii .... F, •, ( D RA FT 5) ROLL CALL VOTE uoduccd By. Takashi Domingo t Introduced: May 11. 1994 AYES NOES ABS EX -it Reading: May 11, 1994 ARAYWO X blishcd: NA BONK,ABRAMSON CHUMS x A ARKS DE 11MA Nav 11; 1994 - Deferred DOMINGO iIA1� X RATH ROSEMLL X SCS UrrE A n and Rcaning: June 15, 1994 Mayor. _ Jun _ 15, 1 994 urncd: June 28, 1994 xtivc: June 28, 1994 -lished: July 7. 1994 ( DRAFT 6 ) I DO HEREBY CER27FY that the foregoing BILI, was adopted by the County Council and published as cared above. APPROVED as to FCR, and LEG L1TY XtCORPO;1A7jOq- / CbuNS COUNTY OF HANYAIi -rpved/this 2e day ,19`W - 'OR, COUNTY F HAWAII COUNCIL CHAIRMAN COUNTY C n;11 r, , - — . , . . . �yA/AYA AHOA Hf HWAY J �l p 0 0 0 " ry r k e e �J J .0 Li</ 0 y/yg1- V r r r r ry� " 8-1-09.0 o p p p42 a� a 8-1-09:09 �e 8-1-09-04. J / w e X41-09:03 '-:8-1-09:33 8-1-04:01 r 1-09:34 w t .� �.. -04. 8-1 03 w 8-1-04:54 / 7-9-12:04 �) e w �. PROPOSED MAMA(AH 8-1-07:01 w BY-PASS /CHWAY 4 8-1-07:45 I � k . 8-1-07:55 8-1-07:54 EXHIBIT T2