HomeMy WebLinkAboutCOM 0210.000 2012-2014 ;Mtr.os h. ,
cP,.• ^ \ ;,'..• William T.Takaba
�V�'?• Managing Director
•William P.Kenoi •���"'l° ��:•
Mayor
•,,•• , `= •;i Walter K.M.Lau
4:�4. * Deputy Managing Direc
or
• t OF: —
County of Hawaii
Office of the Mayor
25 Aupuni Street,Suite 2603 • Hilo,Hawaii 96720 • (808)961-8211 • Fax(808)961-6553 •
KONA: 74-5044 Ane Keohokalole Hwy.,Bldg.C • Kailua-Kona,Hawaii 96740
(808)323-4444 • Fax(808)323-4440
February 8, 2013
J Yoshimoto, Council Chair
and Members of the County Council
County of Hawaii
25 Aupuni Street
Hilo, HI 96720
Dear Chair Yoshimoto and Members of the County Council:
SUBJECT: Resolution Accepting the Grant of Easement from Robert Milbank, Jr.,
Trustee in the Bankruptcy of Pacific Plains,LLC for Public Access Purposes
TMK: 5-2-007:004 (por.), 028 (por.) & 029 (por.)
I am pleased to forward for your consideration and adoption a Resolution accepting a grant of
easement over the subject properties for public access purposes.
These easements will provide vehicular, parking and pedestrian public access to and laterally
along the coastline of the subject properties.
Please contact Larry Brown in the Planning Department at 961-8135 or lbrown @co.hawaii.hi.us
if you have any questions.
Sincerely,
WILLIAM P. KENOI
Mayor
LB:lb
W:\CZM\Public Access&Trails\North Kohala\Kapanaia Bay\Mayor xmtl to CC.doc
Enclosure: Resolution w/Exhibits
•e
Comm. No. °2 I°
Ref. To: (=G
Ref. date �9
County of Hawaii is an Equal Opportunity Provider and Employer. A� 1 1 Z®�
LAND COURT REGULAR SYSTEM
Return By Mail X Pick-Up To:
CARLSMITH BALL L.LP
121 Waianuenue Avenue
Hilo, HI 96720 TOTAL NUMBER OF PAGES:
Attention: Steven S. C. Lim
Telephone: (808)935-6644
TITLE OF DOCUMENT:
GRANT OF PUBLIC ACCESS EASEMENTS
PARTIES TO DOCUMENT._- ------
GRANTOR: ROBERT MILBANK, JR., Trustee
c/o Charles B. Hendricks
Cavazos, Hendricks, Poirot& Smitham, P.C.
900 Jackson, Suite 570
Dallas, Texas 75202-4425
GRANTEE: COUNTY OF HAWAII, a political subdivision of the State of Hawaii, whose
principal place of business and post office address is 25 Aupuni Street, Hilo,
Hawaii 96720
TAX MAP KEY(3) 5-2-007:004(por,), 028 (por.)—and 029(por.); being Lots 8 and 9 under Subdivision
No. 07-000632 4827-6544-5642/1-14-13
GRANT OF PUBLIC ACCESS EASEMENTS
THIS GRANT OF PUBLIC ACCESS EASEMENTS is made this ' ' day of
, 2013, by and between ROBERT MILBANK,JR.,
Trustee in the ankruptcy Case of Pacific Plains Company, LLC, Bankruptcy No. 12-31653-
SGJ-11, filed in the United States Bankruptcy Court for the Northern District of Texas, Dallas
Division, whose address is c/o Charles B. Hendricks, Cavazos, Hendricks, Poirot& Smitham,
P.C. , 900 Jackson, Suite 570, Dallas, Texas 75202-4425, 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, Pacific Plains Company, L.L.C. was the developer of those certain real
properties situated in `A'amakao and Halawa, District of North Kohala, County and State of
Hawaii, as identified in Subdivision Application No. 07-000632, pending approval by the
County of I-lawaii Planning Department (the "Project"); and
WHEREAS, Robert Milbank, Jr., was appointed Trustee by Order Approving
Appointment of Trustee filed on October 25, 2012, in the Bankruptcy Case of Pacific Plains
Company, LLC, Bankruptcy No. 12-31653-SGJ-11, United States Bankruptcy Court for the
Northern District of Texas, Dallas Division; and
WHEREAS, pursuant to the provisions of Hawaii Revised Statutes Section 46-6.5
relating to Public Access, the County of Hawaii has adopted Hawaii County Code Chapter 34
(Public Access), which provides for implementation of public access over private property in
appropriate locations to the ocean. shorelines and mountain areas as applicable, by requiring
dedication of land for such public rights-of-way by fee or easement as a condition precedent
to final subdivision approval or the issuance of a building permit for a multiple-family
development where adequate public access is not already provided, including provisions
requiring the County of Hawaii to be responsible for all improvement costs, liability and
maintenance issues; and
-2-
WHEREAS, in order to assure that public access is provided within the Project to and
along designated public access areas, the Grantor and the Grantee hereby agree to be bound
by, and to encumber the real properties identified and depicted on Exhibit 1 attached hereto
and incorporated by reference herein, by recording this Grant of Public Access Easements
with the Bureau of Conveyances or the Land Court of the State of Hawaii, as applicable; and
WHEREAS, The County issued Special Management Area Minor Use Permit No.
09-106 ("SMA Minor 09-106") on May 30, 2009, to allow the consolidation of ten (10) legal
lots of record [being TMKs: (3) 5-2-007:004, 015 to 019, inclusive, and 5-3-007:028 to 031,
inclusive, and the resubdivision of the Project lands into seven (7) agricultural lots, one (1)
bulk lot and one (I) internal subdivision roadway lot to be known as the "Kapanaia
Subdivision"; and
WHEREAS, Condition No. 5 of SMA Minor 09-106 states as follows:
The applicant shall develop and implement a public access plan
for the proposed subdivision to provide a mauka-makai
vehicular public access and continuous traversable public
lateral pedestrian access along the shoreline that connect to
current or future lateral shoreline trails on neighboring TMKs:
(3) 5-3-007:026 and 5-2-001:01-I. This plan shall incorporate
public access requirements including, but not limited to, the
Planning Director's letter of October 7, 2008 mentioned above,
provisions for acquisition, installation and maintenance of
public access and hazard signage, and the Planning
Department's public access guide 'What should be included in a
Public Access Plan.' This plan shall be submitted to the
Planning Director for approval within one (1)year after the
granting of this permit. Implementation of this public access
plan must be verified and approved by the Planning Director
prior to granting of final approval of the proposed
consolidation/resubdivision. Should public access easements
be identified as a requirement in the approved public access
plan, they shall be delineated on the subdivision final plat
map. "
WHEREAS, pursuant to Items 1(c) and 1(d) of the Stipulated Agreement in Kohala
Corp. v. Ahoi, et al.; Civil No. 5464, Circuit Court of the Third Circuit, filed March 1, 1982,
Kohala Corporation granted in favor of the State of Hawaii: (1) a non-exclusive vehicular
right-of-way, at least 20-feet wide to the ocean at Kapanaia Bay and beach in the land of
'A'amakao, and (2) a non-exclusive, perpetual pedestrian easement, 4-feet wide, along and
-3-
within the seaward boundary of the subject lands. These existing easements are located
within Bulk Lot 8 and Archaeological Lot 9 as depicted on Exhibit I; and
WHEREAS, the recordation of this Grant of Public Access Easements at the Bureau
of Conveyances of the State of Hawaii shall constitute full and final compliance with all
public access requirements for the lands of the Project of Section 46-6.5, Hawaii Revised
Statutes ("HRS"), Chapter 205A, HRS, the Ala Loa, the Ala Kahakai Trail, Chapters 23
(Subdivision)and 34 (Public Access), Hawaii County Code, and Planning Department Rule
21 relating to Public Access: Usage, provided however, that if any of the Project tax key
parcels identified in Exhibit 1 attached hereto are proposed for subdivision or other uses and
activities proposed in the Special Management Area, the County may require further public
access over the Project tax key parcel proposing such uses and activities; and
WHEREAS, this Grant of Public Access Easements shall fully satisfy the
requirements of Condition No. 5 under SMA Minor 09-106, which requires that ". . . the
Planning Department must approve the draft recorded instruments conveying public access
over the approved shoreline public access pedestrian easements to the County of Hawaii. . . "
NOW,THEREFORE, Grantor and Grantee agree as follows:
THAT THE Grantor, for and in consideration of the sum of TEN AND NO/100
DOLLARS ($10.00)paid by Grantee, the receipt whereof is hereby acknowledged, and in
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, a perpetual and nonexclusive right and easement in,upon,
through, over, under and across the Grantor's Property for vehicular,pedestrian and parking
public access purposes as indicated thereon, including without limitation, the construction,
reconstruction, installation, maintenance, operation, replacement and repair of improvements
constructed for said purposes (collectively "Public Access Easements"), as follows:
Public Access Parking Area: Easement PP-1, being four (4) unimproved public
access parking stalls (approximately 3,331 square feet) at an existing plateau area
located north/makai of the Railroad right-of-way as depicted on Exhibit 1.
Vehicular Public Access: Easement VA-1, being 20-feet wide,non-exclusive,
vehicular public access easement as depicted on Exhibit 1. VA-1 connects the
existing 20-feet wide, non-exclusive, vehicular public access easement to the public
access parking Easement PP-1.
-4-
Mauka-Makai and Lateral Pedestrian Public Access: Easement PA-1, being 10-
feet wide undesignated pedestrian public access easement(which includes the existing
4-foot wide lateral public access easement to the State of Hawaii) within a 40-foot
wide corridor measured from top edge of the cliff, and (2) a 10-feet wide pedestrian
mauka-makai public access easement PA-1 from the public access parking Easement
PP-1 towards Kapanaia Bay as depicted on Exhibit 1.
As used herein, the term "pedestrian public access" shall mean and be limited to uses
allowed by the public pedestrian access usage regulations as provided in Planning Department
Rule 21, Public Access: Usage.
If portions of the Public Access Easements erode away, destroying the Public Access
Easements or making said easements hazardous, the Public Access Easements shall be
relocated to a safe location immediately adjacent to the destroyed portion of the Public Access
Easements. 'I he County of Hawaii shall survey the new Public Access Easements,and
prepare an Amended Grant of Easements to he recorded against the Property by the Grantor,
and its successors and assigns. Where the trails do not exist on the ground in the area of the
desired pedestrian public access, Grantor shall have no obligation to make trails.
Nothing in this Grant of Public Access Easements shall amend, qualify or otherwise
limit the following: (1) the liability protections given to the Grantor pursuant to Hawaii
Revised Statutes Chapter 520, including without limitation the protections afforded in Section
520-4(b), 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 Hawaii
Revised Statutes Section 663-1.54 relating to Recreational Activity Liability.
ANID, Grantor and Grantee hereby covenant and agree as follows:
1. The Easement Area shall not be officially open to the public until this Grant of
Public Access Easements has been accepted by the County of 1-Iawaii. The Easement Area as
described hereinabove may be used by any members of the public having the right to use such
Easement Area, subject to, and upon the following terms and conditions:
a. Restrictions on Use. The regulation on the use of the Public Access
Easements described above, including activities prohibited within the
Public Access Easements shall be pursuant to Planning Department
Rule 21, Public Access: Usage. In addition, public access will be open
generally from sunrise or 6:00 a.m., whichever is earlier,to one-half
hour beyond sunset or 6:00 p.m., whichever is later. Access for night
-5-
fishing past 6:00 p.m. shall be allowed pursuant to a permit or
registration system approved by the Grantee. Access for night fishing
past 6:00 p.m. shall be allowed for those individuals who are actively
engaged in night fishing activities, and does not include the right to
overnight camping.
b. Maintenance and Control of the Public Access Easements. Other than
the execution of this Grant of Public Access Easements and
performance of the duties hereunder, the Grantor shall have no
responsibility to maintain, control, implement or provide pedestrian
public accesses upon and through the Project. The Grantee shall be
solely responsible for maintaining, controlling, insuring and repairing
the Public Access Easements and any and all improvements constructed
upon and/or located within said Public Access Easements, in a good
and safe condition, ordinary wear and tear excepted.
2. The Grantor and Grantee agree that the execution and delivery to the County of
Hawaii by Grantor of this Grant of Public Access Easements shall constitute full and final
compliance with all public access requirements for the Project pursuant to Section 46-6.5,
HRS, Chapter 205A, HRS, Ala Loa and Ala Kahakai, Chapters 23 (Subdivision)and 34
(Public Access), Hawaii County Code, and Planning Department Rule 21 relating to Public
Access: Usage.
3. The Grantor and Grantee further agree that the use of the parking, vehicular and
pedestrian public access easements 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, Grantee shall have the right to claim and recover from the condemning authority,
but not from Grantor, such compensation as is payable for the said rights and easements
within the public access easement by Grantee, all of which shall be payable to Grantee.
-6-
6. The terms "Grantor" and "Grantee" wherever used herein shall include Grantor
and Grantee and their respective heirs, devisees, personal representatives and assigns
according to the context thereof.
7. All the terms, covenants and conditions of this Grant of Public Access
Easements shall run with the land and shall inure to the benefit of and be binding upon the
successors and assigns of Grantor and the successor and assigns of Grantee to the same extent
as said terms, covenants and conditions inure to the benefit of and are binding upon Grantor
and Grantee, respectively.
8. This writing contains the entire agreement of the parties hereto concerning the
subject matter hereof, and this Grant of Public Access Easements supersedes all other
agreements and understanding(whether oral or written) heretofore or contemporaneously
herewith made by the parties.
9. The parties hereto agree that this instrument may be executed in counterparts,
each of which shall be deemed an original, and said counterparts shall together constitute one
and the same agreement, binding all of the parties hereto, notwithstanding all of the parties are
not signatory to the original or the 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.
10. The parties agree that the person or company recording or arranging for the
recordation of this instrument is authorized to complete any blanks contained in this
instrument with the applicable number of pages, dates, and recordation information, whether
before or after this instrument has been notarized by a notary public, and in no event shall
completion of any such blanks be deemed an alteration of this instrument by means of the
insertion of new content.
(the remainder of this page is left intentionally blank; signature page.followsj
-7-
IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day
and year first above written.
COUNTY OF HAWAII, a municipal 0).0.ptQjd,t
company ROBERT MILBANK., JR.
By Trustee
Its: ayor KI--�--AGREED AND ACCEPTED:
By //'J %� Ce-
ing Director
County of Hawaii
Date: )-
1/.�
Agreed as to Form and Legalit
By
Deputy Corpor. 'counsel
Date: F B 1 2 2 013
-8-
STATE OF HAWAII )
) SS.
COUNTY OF HAWAII )
On this 14th day of February, 2013 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 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 in behalf of the
County of Hawaii by authority given to said Mayor of the County of Hawaii by
Section 5-1.3 and 13-13 of the County Charter, County of Hawaii (2010), as amended;
and said WILLIAM P. KENOI acknowledged said instrument to be the free act and deed
of said County of Hawaii.
( ill!\! il 1'1 ' 0 t- . "
i.111t AM/
Notary • b ic, State t ,:wail, 3r• Jud. Cir.
Printed Name: Paule Cainglit
My Commission Expires: 12/16/2013
NOTARY CERTIFICATION
Document Description: Grant of Public Access Easements
( Robert Milbank, Jr., Trustee do Charles B. Hendricks /County of Hawaii )
(TMK: (3) 5-2-007:004 (por.), 028 (por.) and 029 (por.); being Lots 8 and 9 under Subdivision
No. 07-000632)
Doc. Date: February 14, 2013 0 undated at time of notarization. c�
N.. o�Page \ ,1 + Exh. 't Circuit: Third
I '11 l, 1 ( February 14, 2013
Notar Sighature Date
Notary h. -me: Paul to Cainglit
STATE OF HAWAII )
) ss.
COUNTY OF HAWAII )
On this 17th day of January, 2013, before me personally appeared ROBERT
MILBANK, JR.,Trustee, to me personally known, who, being by me duly sworn or
affirmed, did say that such person executed the foregoing instrument 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.
i
`��.`\�, osoR,o'%: Nam ` J`Z 4(
NOTARY
PUBLIC = Notary Public, State of Hawaii
Comm.No - C; 1 C9.. v�_)'
••, o9-307 .• My commission expires:
(\ r' S l i n i t?p r' 4t illi)t to`
NOTARY CERTIFICATION STATEMENT
Document Identification or Description: Grant of Public Access Easements
Document Date: 0 "i c—)c), I �
No. of Pages: (In (4 4 .{ {.t1Q �.����>i,..„ ��i
Jurisdiction (in which notarial aJ is performed):
1
1 0 1 = PUBLIC
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09-307 0.•
Si ture o Notary Date of Notarization and •'
\' -- y-,, ` Certification Statement '•,�'OFVAN'.0`,
,:i ryotar. Stamp or `.,(..sal)
Printed Name of Notary
"Exhibit 1"
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0* 4• • I_u ernenl VA..ti A mauka-makai vehicular public access easement
being 20-rcet wide.
* Easement PP-I l'ublie access parking.
X Vehicular Public Access. Existing 20-feet wide,non-exclusive,
— —
+' % vehicular public access easement in favor of the State of Hawaii.
pursuant to the Stipulated Agreement,Item 1(c)in Kohala Coporatio,
v 4hor,Civil No 5464,Circuit Court of the Third Circuit,filed Marci
''t41„ 1, 1932
``� f edestrian Public Access:
} .” �= • (I)A 10-feet wide undesignated pedestrian public lateral access
.tp .�, ' .. easement(which includes the existing 4-foot wide lateral public
N. \„ 7avf�''s.' . access casement in favor of the State of Hawaii,pursuant to the
\ %, :� Stipulated Agreement.Item 1(d)in Kohala Corporation a..4hvl,
e—1 \ Crvn Nu 5464,Circuit Court of the Third Circuit.filed March I.
II 'I r \ %.',
1982) +ithin a 40-foot wide corridor measured from top edge of
\ us the cult:'
♦ 0";-/sernent PA-I A 10-feet wide niauka-makai pedestrian
p.ib''.le access easement.