HomeMy WebLinkAboutCOM 0711.000 2010-2012 �;,`V.Oi p ,, William T.Takaba
:7 / i ''., Managing Director
William P.Kenoi *:4 .!'-,f if:*
Mayor `� `-
Walter K.M.Lau
`..�l•T.'a"•"0.;�0"" Deputy Managing Director
E'OP'N►
County of Hawaii
Office of the Mayor
25 Aupuni Street,Suite 2603 • Hilo,Hawai`i 96720 • (808)961-8211 • Fax(808)961-6553 --.. _
KONA: 74-5044 Ane Keohokalole Hwy.,Bldg.C • Kailua-Kona,Hawai`i 96740
(808)323-4444 • Fax(808)323-4440
April 17, 2012
Dominic Yagong, Council Chair r) _:;-)
and Members of the County Council
County of Hawaii
25 Aupuni Street
Hilo, HI 96720
Dear Chair Yagong and Members of the County Council:
SUBJECT: Resolution Accepting a Grant of Easement from the Terry Lynn Harrison
Family Trust for Public Access Purposes
TMKs: 5-3-006:025
I am pleased to forward for your consideration and adoption a Resolution accepting a grant of
easement over the subject property for public access purposes.
This easement will provide pedestrian public access laterally along the sea coast over the subject
land in Kapa`au and `Ainakea in North Kohala.
Please contact Larry Brown in the Planning Department at 961-8135 or lbrown@co.hawaii.hi.us
if you have any questions.
Sincerely,
%11 fell ---' Vcc,„Th______,
WILLIAM P. KENOI
Mayor
LB:lb
\\Coh33\planning\public\wpwin60\CZM\Public Access&Trails\North Kohala\Ainakea\Mayor xmtl to CC.doc
Enclosure: Resolution w/Exhibits
(Res . (2sa— i )
Comm. No. 7 ! !
Ref. Dote P w A P 2
Y 1
0 2012
County of Hawaii is an Equal Opportunity Provider and Employer.
LAND COURT REGULAR SYSTEM
Return By Mail Pick-Up To: LC
TOTAL NUMBER OF PAGES:
TITLE OF DOCUMENT:
GRANT OF PUBLIC ACCESS EASEMENT
PARTIES TO DOCUMENT:
GRANTOR: TERRY LYNN HARRISON,Trustee under that certain unrecorded Declaration
of Trust for the Terry Lynn Harrison Family Trust dated March 28, 1991,and
any amendments thereto,whose mailing address is P. O. Box 551729,Kapaau,
Hawaii 96755
GRANTEE: COUNTY OF HAWAII,a political subdivision of the State of Hawaii,whose
principal place of business and mailing address is 25 Aupuni Street,Hilo,
Hawaii 96720
TAX MAP KEY(3)5-3-006-025(portion)
Affects TCT 995,474
249724.2
1
GRANT OF PUBLIC ACCESS EASEMENT
THIS GRANT OF PUBLIC ACCESS EASEMENT is made this day of
, 2012, by and between TERRY LYNN HARRISON,Trustee under that
certain unrecorded Declaration of Trust for the Terry Lynn Harrison Family Trust dated
March 28, 1991,and any amendments thereto, having all powers under said trust, including full
power to sell, convey, exchange, mortgage, lease, assign or otherwise deal with and dispose of all
lands of the trust estate and interests therein, whose mailing address is P. 0. Box 551729, Kapaau,
Hawaii 96755,hereinafter called "Grantor", and the COUNTY OF HAWAII, a political
subdivision of the State of Hawaii, whose principal place of business and mailing address is
25 Aupuni Street, Hilo, Hawaii 96720, hereinafter called "Grantee".
WITNESSETH:
WHEREAS, Grantor is the owner in fee simple of that certain real property situated at
North Kohala, Island and County of Hawaii, State of Hawaii,being LOT 14-B, area 187.913
acres, more or less, as shown on Map 7, filed in the Office of the Assistant Registrar of the
Land Court of the State of Hawaii with Land Court Consolidation No. 216 of Surety Kohala
Corporation ("Property"), being the lands described in Transfer Certificate of Title No.
995,474;
WHEREAS, the subdivision of the Property under Subdivision No. Sub-08-
000736 was approved by the County of Hawaii Planning Department on November 6, 2009;
249724.2
- 2 -
WHEREAS, Special Management Area Minor Permit No. 08-000093 (SMM
08-93)was approved on December 10, 2008 to allow for the consolidation and resubdivision
of eight(8) lots, being the subject of SUB 08-000736, and included Condition No. 3,which
required the continuation of the lateral pedestrian public access from the end of Easement 11
on the Property through Kapa'au Gulch to the western boundary of the Property.
WHEREAS, in order to assure that public access is provided within the
Property to and along designated shoreline access areas,the Grantor and the Grantee hereby
agree to be bound by, and to encumber the real property, as more particularly described in
Exhibit B attached hereto and incorporated by reference herein,by recordation of this Grant
of Public Access Easement in the Office of the Assistant Registrar of the Land Court of the
State of Hawaii (said"Office of the Assistant Registrar").
WHEREAS,pursuant to Subdivision No. Sub-08-000736 of applicant Ainakea
Makai, LLC, a Hawaii limited liability company, Grantor's predecessor-in-interest,and
Grantee,the recording of this Grant of Public Access Easement in said Office of the Assistant
Registrar shall constitute full and fmal compliance with all lateral public pedestrian access
requirements for the Property pursuant to Condition No. 3 of SMM 08-93 and Chapter 205A,
HRS.
NOW,THEREFORE,the Grantor and Grantee agree as follows:
THAT the Grantor, for and in consideration of the sum of TEN AND NO/l00
DOLLARS ($10.00)paid by Grantee, the receipt whereof is hereby acknowledged, and in
249724.2
- 3 -
further consideration of the covenants and conditions herein contained by Grantee to be
observed and performed, does hereby bargain, sell, assign and grant unto the said Grantee,
and its successors and assigns,perpetual and nonexclusive right and easement in,upon,
through, over, under and across the Grantor's Property for lateral pedestrian public access
purposes and as indicated thereon, including without limitation,the construction,
reconstruction, installation,maintenance, operation,replacement and repair of improvements
constructed for said purposes("Easement Area"), as follows:
Easement 13 containing an area of approximately 0.721 acre,
affecting Lot 14-B for pedestrian public access, as shown on
Map 7, Land Court Consolidation No. 216,as more particularly
described in Exhibit A attached hereto and incorporated by
reference herein.
Easement 11 (portion)containing an area of approximately
0.027 acre, affecting Lot 14-B for pedestrian public access, as
shown on Map 5, Land Court Consolidation No. 216, as more
particularly described in Exhibit C attached hereto and
incorporated by reference herein.
Nothing in this Grant of Public Access Easement shall amend, qualify or
otherwise limit the following: (1)the liability protections given to the Grantor pursuant to
Chapter 520,HRS, including without limitation the protections afforded in Section 520-4(b),
HRS, relating to Landowners'Liability; and(2)the liability protections given to the owners or
operators of any business providing recreational activities to the public who obtain voluntary
written release waivers for their patrons pursuant to the provisions of Section 663-1.54,HRS,
relating to Recreational Activity Liability.
249724.2 -4 -
AND,the Grantor and Grantee hereby covenant and agree as follows:
1. The Public Access Easement described hereinabove may be used by any
members of the public having the right to use such Public Access Easement, subject to and
upon the following terms and conditions:
(a) Restrictions on Use. Lateral pedestrian public access will be open from
sunrise or 6:00 a.m., whichever is earlier,to one-half hour beyond
sunset or 6:00 p.m., whichever is later. It is intended that the pedestrian
public access be utilized for non-commercial,recreational purposes and
shall be subject to the use limitation provided in Section 21-6 of
Planning Department Rule 21. The Grantee shall have the right to
control or prevent access to the lateral pedestrian public access
easement in the event of a County or State declared emergency. Access
for night fishing past 6:00 p.m. shall be allowed for those individuals
who are actively engaged in night fishing activities through a permit
system managed by the Grantee pursuant to Planning Department Rule
21, and does not include the right to overnight camping.
(b) Maintenance and Control of the Public Access Easement. Other than
the execution of this Grant of Public Access Easement and performance
of the duties hereunder,the Grantor shall have no responsibility to
maintain, control, implement or provide lateral pedestrian public
accesses upon and through the Property. As approved by the Planning
Director,the Grantor shall provide an acceptable means of safe
pedestrian passage through any existing or future fence or wall within
the Easement Area. Otherwise,the Grantee shall be solely responsible
for maintaining, controlling, insuring and repairing the lateral
pedestrian public access easement in a good and safe condition,
ordinary wear and tear excepted.
2. The Grantor and Grantee agree that the recording of this Grant of Public
Access Easement in said Office of the Assistant Registrar shall constitute full and final
compliance with all lateral public pedestrian access requirements pursuant to Condition No. 3
of SMA Minor Permit No. 08-000093 and Chapter 205A, HRS.
249724.2 - 5 -
3. The Grantor and Grantee further agree that the use of the lateral pedestrian
public access easement by the general public for the purposes permitted hereunder constitutes
use for "recreational purposes" within the meaning of the Hawaii Recreational Use Statute,
Chapter 520, HRS.
4. That Grantee and the members of the general public shall not use the Easement
Area for any purpose not expressly permitted herein.
5. That if at any time the premises across which the rights and easements are
hereby granted, or any part thereof, shall be condemned or taken by any governmental
authority,the Grantee shall have the right to claim and recover from the condemning
authority,but not from the Grantor, such compensation as is payable for the said rights and
easements within the public access easement by the Grantee, all of which shall be payable to
the Grantee.
6. The terms "Grantor" and "Grantee" wherever used herein shall include the
Grantor and the Grantee and their respective heirs,devisees,personal representatives and
assigns according to the context thereof.
7. This writing contains the entire agreement of the parties hereto concerning the
subject matter hereof, and this Grant of Public Access Easement supersedes all other
agreements and understanding(whether oral or written)heretofore or contemporaneously
herewith made by the parties.
2497242 - 6 -
8. The parties hereto agree that this instrument may be executed in any number of
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 of the parties are not signatory to the original or same counterparts. For all purposes,
including,without limitation, recordation, filing and delivery of this instrument,duplicate
unexecuted and unacknowledged pages of the counterparts may be discarded and the
remaining pages assembled as one document.
[Remainder of this page intentionally left blank—Signatures contained on next page]
249724.2 - 7
IN WITNESS WHEREOF,the parties hereto have executed this instrument on
the day and year first above written.
Grantor:
TERRY L SON,
Trustee as aforesaid
Grantee: COUNTY OF HAWAII,
a municipal corporation
By
Name: WILLIAM P. VENOI
Title: MAYOR
AGREED AND ACCEPTED:
By, �
Nye: al-LMljMad tadd
Planning Director
County of Hawaii
Date: 00tc.,/ /8,2 clo/Z.--
Approved as to Form and Legality
By
Nam : � -
Deputy Corporation Counsel
Date:
2497242 - 8 -
STATE OF HAWAII )
) SS.
ISLAND AND COUNTY OF HAWAII )
On "Y - ct r I, 2&t'1i , before me appeared TERRY LYNN
HARRISON,to me personally known,who being by me duly sworn or affirmed, did say that
such person executed this 13. page Grant of Public Access Easement, dated
no d' , in the Third Circuit of the State of Hawaii, as the free act and deed of
such person, and if applicable in the capacity shown,having been duly authorized to execute
such instrument in such capacity.
t_S
(Signature of Notary)
Print Name of Notary: � �''` �S�`� '-
NOTARY PUBLIC, State of Hawaii
My commission expires: "41-4011-"t
NOTARY c IFI CAT ION
Doc. Date: 7✓✓ OO bets #Pages: 13
Name.L6®Ann `jnrj,te Third Circuit
x Descripticn: r /v? '�t10
Cut-Lss
:a!e
249724.2
STATE OF HAWAII )
SS.
COUNTY OF HAWAII )
On May 7, 2012 , before me personally appeared WILLIAM P. KENOI, to me
personally known, who, being by me duly sworn, did say that he is the Mayor of the County of
Hawai`i, a municipal corporation of the State of Hawai`i, that the seal affixed to the foregoing
instrument is the corporate seal of said County of Hawai`i, the foregoing instrument was signed
and sealed on behalf of the County of Hawai`i by authority given to said Mayor of the County of
Hawai`i by Sections 5-1.3 and 13-13 of the County Charter, County of Hawai`i (2010), as
amended, and said WILLIAM P. KENOI acknowledged said instrument to be the free act and
deed of said County of Hawai`i.
4146444. - L -`7
Notary Public, State of Hawai i
Printed Name: Guillerma G. Sumera
My commission expires: 9/22/13
NOTARY CERTIFICATION STATEMENT
Document Identification or Description: Grant of Public Access
Easement=Terry Lynn Harrison
Doc. Date: May 7, 2012 ❑ Undated at time of notarization.
No. of Pages: 13 Jurisdiction: Third Circuit
• A AA.• 5/7/12
Signature of Notary Date of Notarization and
Certification Statement
Guillerma G. Sumera
Printed Name of Notary
EXHIBIT A
EASEMENT 13
Easement 13, containing an area of approximately 0.721 acre, as shown on Map 7, filed in the
Office of the Assistant Registrar of the Land Court of the State of Hawaii with Land Court
Consolidation No. 216 of Surety Kohala Corporation, for pedestrian public access purposes,
as set forth in Land Court Order No. 183412.
END OF EXHIBIT A
249724.2 - 11 -
EXHIBIT B
All of that certain parcel of land situate at North Kohala, Island and County of
Hawaii, State of Hawaii,described as follows:
LOT 14-B, area 187.913 acres, more or less, as shown on Map 7, filed in the Office
of the Assistant Registrar of the Land Court of the State of Hawaii with Land Court
Consolidation No. 216 of Surety Kohala Corporation.
NOTE: Lot 14-B has access to a public highway, to wit the Mahukona-Niulii
Government Main Road, over and across Easement 1 and Ainakea Drive, a public roadway,
as set forth by Land Court Order No. 169548, filed February 23, 2007.
Being the lands described in Transfer Certificate of Title No. 995,474.
SUBJECT,HOWEVER TO,any and all encumbrances mentioned in or noted on
said Transfer Certificate of Title mentioned herein.
Tax Map Keys (3) 5-3-006:025 (portion)
END OF EXHIBIT B
249724.2
EXHIBIT C
EASEMENT 11 (PORTION)
Easement 11 (portion) containing an area of approximately 0.027 acre, as shown on Map 5,
Land Court Consolidation No. 216 of Surety Kohala Corporation, for pedestrian public access
purposes, as set forth by Land Court Order 179804.
END OF EXHIBIT C
249724.2