HomeMy WebLinkAboutRES 141 Draft 01 2012-2014 '.--„..1rofh,,,•
COUNTY OF HAWAII i• '� t. STATE OF HAWAII
1 •f41” OF: ��''
RESOLUTION NO. 141 13
RESOLUTION FOR THE APPROVAL AND RATIFICATION OF THE MEMORANDUM OF
AGREEMENT FOR THE MAMALAHOA BYPASS HIGHWAY BY THE COUNTY OF HAWAII
AND CAROLINE MAE SMITH, TRUSTEE OF THE ALFRED WHITAKER SMITH REVOCABLE
TRUST UNDER UNRECORDED TRUST AGREEMENT DATED AUGUST 2, 1985, AS
COMPLETELY RESTATED AND AMENDED BY UNRECORDED FIFTH AMENDMENT
DATED MARCH 4, 1993, FOR THE ACQUISITION OF AND IMPROVEMENT OF RIGHTS-OF-
WAY LOTS 25 AND 26, BEING TAX MAP KEYS: (3) 8-1-009:004 (LOT 25) AND (3) 8-1-
009:005 (LOT 26), SITUATED AT KAAWALOA, DISTRICT OF SOUTH KONA, ISLAND,
COUNTY AND STATE OF HAWAII.
BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAI`I:
WHEREAS, Caroline Mae Smith, Trustee of the Alfred Whitaker Smith Revocable Trust
under unrecorded trust agreement dated August 2, 1985, as completely restated and amended by
unrecorded Fifth Amendment dated March 4, 1993 ("Smith Trust"), is the owner of the Rights-of-Way
Lots 25 and 26, which contains an area of 0.480 acre and 0.069 acre, more or less, respectively,
identified as Tax Map Keys: (3) 8-1-009:004 (Lot 25) and (3) 8-1-004:005 (Lot 26), situated at
Kaawaloa, district of South Kona, Island, County and State of Hawai`i, ("Smith Trust's Land") as
described in Exhibit"A" and delineated in Exhibit"C" of the attached Memorandum of Agreement for
the Mamalahoa Bypass Highway by the County of Hawai`i ("County") and Caroline Mae Smith,
Trustee of the Alfred Whitaker Smith Revocable Trust under unrecorded trust agreement dated
August 2, 1985, as completely restated and amended by unrecorded Fifth Amendment dated March 4,
1993 (hereinafter referred to "Memorandum of Agreement"), attached as Exhibit "1"; and
WHEREAS, the County intends to complete the design, construction and development of a
road intended to bypass Mamalahoa Highway in the approximate vicinity between Keauhou and
Captain Cook, Kona; said road is planned to consist of two lanes and a sufficient right-of-way for
expansion to four lanes ("Bypass Highway"); and
WHEREAS, the Mamalahoa Bypass Highway will be constructed through Hokuli`a, from
Ali`i Drive in Keauhou, through an intersection with an extension makai of Haleki`i Street, and
continuing to a southern connection with Mamalahoa Highway in Napo`opo`o, to relieve acute traffic
congestion on Mamalahoa Highway;
WHEREAS, the County owns the completed Phase I of said Mamalahoa Bypass Highway
("North Segment"), from Keauhou going south, and the extension of Haleki`i Street and its intersection
with the Mamalahoa Bypass Highway;
WHEREAS, the County also owns certain rights-of-way lots of Phase II of said Mamalahoa
Bypass Highway ("South Segment") from the North Segment of the Mamalahoa Bypass Highway and
Haleki`i Street extension intersection towards the southern connection with Mamalahoa Highway in
Napo`opo`o; and
WHEREAS, it is planned that the route of the South Segment of the Mamalahoa Bypass
Highway will pass through Smith Trust's Land, and in anticipation thereof, Smith Trust and the
County have agreed on an approximate location for the South Segment of the Mamalahoa Bypass
Highway on Smith Trust's Land and as shown on Exhibit "B" attached to the Memorandum of
Agreement and on certain other matters relating thereto; and
WHEREAS, the County shall pay the Smith Trust the amount of$145,787 as fair and just
compensation for Smith Trust's Land and coffee trees that were, and will be, removed, and the Smith
Trust shall convey Lots 25 and 26 to the County in accordance with the terms and conditions of the
Memorandum of Agreement; and
WHEREAS, the County shall do certain improvements and other matters with its construction
of the South Segment of the Mamalahoa Bypass Highway on Smith Trust's Land, and at no cost or
expense to the Smith Trust in accordance with Provision 5 (Specific Covenants of County) of the
Memorandum of Agreement, to mitigate damages to the Smith Trust's Land; and
WHEREAS, the County, through its Administration or Executive Branch, is seeking approval
and ratification of the Memorandum of Agreement (see attached) because there is an appropriate and
valid Public Purpose, now, therefore,
BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that the
Memorandum of Agreement is approved and ratified for the acquisition of Rights-of-Way Lots 25 and
26, which contains an area of 0.480 acre and 0.069 acre, more or less, respectively, identified as Tax
Map Keys: (3) 8-1-009:004 (Lot 25) and (3) 8-1-004:005 (Lot 26), described and delineated in
Exhibit "C" of the Memorandum of Agreement attached hereto for public road and drainage purposes.
BE IT FURTHER RESOLVED that the above referenced Memorandum of Agreement and
any related documents on behalf of the County of Hawai`i is approved and ratified pursuant to
Article XIII, Section 13-13 of the Hawai`i County Charter 2000.
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BE IT FINALLY RESOLVED that a copy of this resolution be forwarded to:
(1) Mayor William P. Kenoi; (2) Warren H.W. Lee, Director of Public Works; (3) Joseph K.
Kamelamela, Senior Deputy Corporation Counsel; and (4) Caroline Mae Smith, Trustee of the Alfred
Whitaker Smith Revocable Trust, P.O. Box 2565, Kealakekua, Hawai`i 96750-2565.
Dated at Kona , Hawai`i, this 24th day of Jul y , 2013.
INTRODUCED BY:
COUNCIL ME BER, COUNTY OF HAWAI`I
COUNTY COUNCIL ROLL CALL VOTE
County of Hawai`i AYES NOES ABS EX
Hilo, Hawai`i EOFF X
FORD X
I hereby certify that the foregoing RESOLUTION was by ILAGAN X
the vote indicated to the right hereof adopted by the COUNCIL of the KANUHA
County of Hawaii on July 24, 2013 X
KERN X
ONISHI X
ATTEST: POINDEXTER X
WILLIE X
YOSHIMOTO X
9 0 0 0
Reference: C-344/Waived PWPRC
OUNTY CLERK CHAIRPERSON&PRESIDING OFFICER RESOLUTION NO.
141 13
3
MEMORANDUM OF AGREEMENT FOR
THE MAMALAHOA BYPASS HIGHWAY BY THE
COUNTY OF HAWAII AND CAROLINE MAE SMITH,
TRUSTEE OF THE ALFRED WHITAKER SMITH REVOCABLE
TRUST UNDER UNRECORDED TRUST AGREEMENT DATED
AUGUST 2, 1985, AS COMPLETELY RESTATED AND AMENDED BY
UNRECORDED FIFTH AMENDMENT DATED MARCH 4, 1993
THIS MEMORANDUM OF AGREEMENT FOR THE MAMALAHOA BYPASS
June 19, 2013
HIGHWAY("Agreement") is entered into as of , by and
between the COUNTY OF HAWAII, a municipal corporation of the State of Hawai`i
("County"),whose principal place of business and mailing address is 25 Aupuni Street, Hilo,
Hawai`i 96720, and CAROLINE MAE SMITH, Trustee of the Alfred Whitaker Smith
Revocable Trust under unrecorded Trust Agreement dated August 2, 1985, as completely
restated and amended by unrecorded Fifth Amendment dated March 4, 1993 ("Smith Trust"),
whose mailing address is 7530 Eucalyptus Hill, La Mesa, California 91942.
RECITALS
1. The Smith Trust is the owner in fee simple of the real property bearing TMKS:
(3) 8-1-009:004 and 8-1-009:005 ("Smith Trust's Land"), and described in Exhibit"A" attached
hereto.
2. The County intends to complete the design, construction and development of a
road intended to bypass Mamalahoa Highway in the approximate vicinity between Keauhou and
Captain Cook, Kona; said road is planned to consist of two lanes and a sufficient right-of-way
for expansion to four lanes ("Bypass Highway").
3. It is planned that the route of the Bypass Highway will pass through Smith Trust's
Land, and in anticipation thereof, Smith Trust and the County have agreed on an approximate
! IB'T " I ''
location for the Bypass Highway on Smith Trust's Land and as shown on Exhibit"B" and on
certain other matters relating thereto.
4. Smith Trust and the County desire to set forth their agreement with respect to the
Bypass Highway in this Agreement.
AGREEMENT
In consideration of the Recitals set forth hereinabove, which by this reference are
incorporated herein, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Smith Trust and the County agree as follows:
1. Use of Defined Terms: For purposes of construing and interpreting this
Agreement,words or terms defined in this Agreement when written with initial capital letters
shall have the meanings given to them in this Agreement. Such terms may be used in the
singular,plural,possessive or in varying tenses, but such variation shall not affect their meaning
so long as such words or terms are written with an initial capital letter. When such terms are
used in this Agreement but are written without an initial capital letter, such terms shall have the
meaning they have in common usage. The capitalized terms used in this Agreement are defined
in the following sections hereof.
Defined Terms Section
Agreement Preamble
Bypass Highway Recital 2
County Preamble
Existing Driveway 5.2
Fax 6.1
New Driveway 5.1
Smith Trust Recital 1
Smith Trust's Land Recital 1
Right-of-Way 2.1
Subdivision 3
Trustee Preamble
Limited Warranty Deed (in Lieu of Condemnation) 4.1
2. Location of Bypass Highway on Smith Trust's Land:
2.1 Smith Trust's Agreement to Provide Right-of-Way: Within sixty (60)
days from the date of this Agreement and subject to the terms and conditions of this Agreement,
a right-of-way for the Bypass Highway on Smith Trust's Land ("Right-of-Way")the County
shall pay the Smith Trust the amount of$ 145,787 as fair and just compensation for
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Smith Trust's Land and coffee trees that were removed and the Smith Trust shall provide such
Right-of-Way subject to and in accordance with this Agreement.
2.2 Location. That the properties to be provided for the Right-of-Way are
described in and delineated in Exhibit"C" attached hereto and made a part hereof.
2.3. Standards for the Construction of the Bypass Highway. The Bypass
Highway shall be constructed in conformance with the standards of the County's Department of
Public Works for Ali`i Highway, subject, however,to such modifications as may be required by
said Department of Public Works. The two-lane paved surface of the Bypass Highway shall be
constructed within the Right-of-Way. Construction of the Bypass Highway shall be subject to
the standards and requirements of the County's Department of Public Works for Ali`i Highway
and to such modifications as may be deemed necessary by said Department of Public Works,
including,without limitation,those set forth on Exhibit"D" attached hereto, and to existing
terrain and other ground conditions within the Right-of-Way.
3. Subdivision Right-of-Way. Within one hundred eighty (180) days from the date
of this Agreement,the County agrees that it shall commence to subdivide the Right-of-Way from
the Smith Trust's Land("Subdivision") and shall pursue such subdivision work and process with
the County in a continuous manner and shall diligently pursue same to conclusion at its sole cost
and expense. Smith Trust agrees that it shall fully cooperate with the County and its consultants
in said subdivision work and process and shall, at the request of the County, execute all
reasonably necessary documents, applications and other submissions relating to said Subdivision
to County and/or State of Hawai`i agencies and/or departments, which relate to said Subdivision.
4. Relinquishment of Ownership of Right-of-Way.
4.1 Conveyance of Right-of-Way: Upon the County's payment of the Right-
of-Way, Smith Trust shall convey such Right-of-Way to the County by way of a limited
warranty deed(in lieu of condemnation) in the form attached hereto as Exhibit"E"("Limited
Warranty Deed"), free and clear of all liens, encumbrances and claims of any nature, except
those permitted by the grantee as set forth on said Exhibit"E." All costs of such conveyance,
including, without limiting the generality of the foregoing,the costs of subdividing the Right-of-
Way from the Smith Trust's Land to permit such conveyance, surveyor's fees incurred in
connection with the preparation of any subdivision map and real property conveyance tax shall
be borne by the County.
5. Specific Covenants of County: Concurrently with its construction of the Bypass
highway on Smith Trust's Land, and at no cost or expense to the Smith Trust,the County agrees
to do the following:
5.1 New Driveway. The County will construct a new concrete driveway as
illustrated on Exhibit"F"to provide access to the residence on TMK: (3) 8-1-009:004 and to
provide future access to TMK: (3) 8-1-009:005. This driveway will typically be 10 feet wide and
will include a 30 feet wide apron at Napo`opo`o Road with 15 feet radius returns. The grade of
the driveway will be approximately 3 percent for the first 50 feet. It is anticipated that the grade
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of the driveway from the end of the 3 percent grade to the existing driveway loop will be
approximately 25 percent. The new driveway will straddle the property line between
TMKS: (3) 8-1-009:004 and 8-1-009:005 as requested, and will be supported by a retaining wall
as deemed necessary. In addition, a"T"driveway intersection will be constructed to provide
future driveway extension into TMK: (3) 8-1-009:005. This"T" intersection will be located near
the existing driveway loop and along the south side of the proposed driveway. The"T"
intersection and driveway extension will terminate at the north property line of TMK: (3) 8-1-
009:005 and will be 10 feet wide. Furthermore, the existing driveway loop will be studied during
design to divert storm water, flowing down the proposed re-aligned driveway, away from the
existing garage and residence. If needed, a portion of the existing driveway loop will be
reconstructed to provide positive drainage away from the garage and residence. The County will
also prepare a boundary description and exhibit for a 50 feet wide access easement to be centered
over that portion of the new driveway that straddles TMKS: (3) 8-1-009:004 and 8-1-009:005.
The easement description and exhibit will be provided to the Smith Trust. It will be the
responsibility of the Smith Trust to record the access easement, prior to any future sale of
TMK: (3) 8-1-009:005 so that the common driveway can be used to access both parcels.
5.2 Existing Driveway and Fill: Subsequent and subject to the filing of the
appropriate and necessary documentation executed by all necessary parties to extinguish the
existing access/utility easement across the Smith Trust's Land, the County shall remove the
existing concrete driveway and dirt access road that serves the adjoining properties(i.e. TMKS:
(3) 8-1-009:003, 033, 034, 035, 036, 037, 038 and 039 ("Dominant Parcels"))which is located
within the northeast corner of TMK: (3) 8-1-009:004. The removal will include all pavement
and dirt fill material. The County will prepare a recordable document and submit the document
to the owners of the Dominant Parcels agreeing to the termination of the access/utility easement
which lies over a portion of TMK: (3) 8-1-009:004. When signed,this document can be used in
support of extinguishing the existing access/utility easement. The County will request the owners
of the Dominant Parcels (i)to sign a document prepared by the County, (ii)to revise the existing
Subdivision Map that shows the existing access/utility easement to be extinguished. However,
the County cannot guarantee that the owners of the Dominant Parcels will honor the request.
5.3 Retaining Wall: The County shall construct a new retaining wall along the
makai side of Napo`opo`o Road abutting TMKS: (3) 8-1-009:004 and 8-1-009:005 as shown on
Exhibits "F"and"G." The new retaining wall will be located within the public right-of-way.
The retaining wall will also be required and constructed along the north and south sides of the
new concrete driveway (as described in Section 5.2). The new wall will be a maximum height of
approximately 16 feet and will decrease in height to approximately 2 feet near the ends of the
wall at four separate locations.
5.4. Maintenance and Catastrophic Repair Access along Retaining Wall: The
Smith Trust shall allow a 5 feet maintenance access along the retaining wall. The Smith Trust
shall also allow a 12 feet access along the retaining wall for catastrophic repair work.
5.5. Fencing and Gate: Stock-proof fence will be installed in accordance with
Exhibit"H." However, the fence type will be hog wire with a single strand of barb wire on top
as requested by the Smith Trust. The fence will be installed along the proposed right-of-way line
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on the makai side of Napo`opo`o Road in front of TMKS: (3) 8-1-009:004 and 8-1-009:005 as
shown on Exhibit"F." A 10 feet wide single gate will be installed across the new driveway (as
described in Section 5.1) and connected to the new stock-proof fence. The fencing and gate will
be installed as part of the intersection improvements and will not be installed until the final
roadside grading is complete.
5.6. No additional Encroachments or Electric/Telephone Poles: No new or
additional drainage easements or structures caused by the construction of the Bypass Highway or
the new Napo`opo`o Road will encroach onto the Smith Trust's Land, and no additional electric
or telephone poles will be placed on the Smith Trust's Land as a result of the project. All new or
relocated electric and/or telephone poles will be located within the Right-of-Way except for any
existing poles that may exist on the Smith Trust's land that currently serve the Smith Trust
residence.
5.7. Guardrail/Retaining Wall: The County shall construct a retaining wall
along the makai side of Napo`opo`o Road where it adjoins the Smith Trust's Land as defined in
Section 5.3. The wall will be constructed to look similar to the existing walls at Mamalahoa
Highway and Konawaena School Road intersection and as illustrated in the photographs on the
attached Exhibit"I"as requested by the Smith Trust. Guardrail will be installed along the makai
side of Napo`opo`o Road adjacent to the paved shoulders in accordance with County of Hawai`i
Department of Public Works standards and requirements.
5.8. Landscaping: Any existing lawn areas damaged during construction,
within the construction limits on the Smith Trust's Land, will be repaired or replaced in like
kind. The repair and/or replacement of lawn areas will satisfy the County's requirement to re-
landscape the areas within the Smith Trust's Land that are disturbed during construction. It will
be the responsibility of the Smith Trust to plant any new trees or plants within these disturbed
areas.
5.9. Water Meters/Irrigation Systems: The existing water service and meter
that provides domestic water to the Smith Trust TMK: (3) 8-1-009:004 will be relocated to a
location adjacent to and parallel to the north side of the proposed driveway to provide domestic
water connection to the residence. The existing 5/8-inch meter will be relocated to the new
location or replaced with a new 5/8-inch meter as determined and directed by the Department of
Water Supply. The service line from the water main to the meter will be a 1-inch line. A new f-
inch water line will be installed upstream of the meter(residence side of the meter) and will be
extended and connected to the existing water service near the residence. At this time, it is not
anticipated that the water service and meter,that serves TMK: (3) 8-1-009:005, will be disturbed
or require relocation.
5.10. Access/Utility Service: Access and utility service to the Smith Trust's
Land and residence will be maintained during construction.
5.11. "No parking" signs: The County will add "no parking" signs to the mauka
and makai sides of Napo`opo`o Road in front of the Smith Trust Land as requested by the Smith
Trust, and as required and approved by the County of Hawai`i, Department of Public Works.
5
5.12. Explosives: The County or their representatives, does not anticipate the
need to use explosives to construct the improvements to Napo`opo`o Road or the Mamalahoa
Highway within 1,000 feet of the Smith Trust residence located on TMK: (3) 8-1-009:004.
However, if it is determined that explosives will be used, within the 1000-foot area, and damage
to the Smith Trust residence occurs as a result of this use,the County or their representative will
be responsible to repair the damage to a condition equal to the condition prior to the damage.
6. Notices:
6.1. Generally: All notices, demands and requests that may or are required to
be given by either the County or Smith Trust shall be in writing and shall be (A)personally
delivered, or(B) sent by registered or certified mail,return receipt requested, postage prepaid,
addressed as set forth below, (C) forwarded by Federal Express or similar generally recognized
overnight delivery service regularly providing proof of service; or(D)transmitted by facsimile
transmission("Fax")to the Fax number, if any, of such party set forth in Section 6.2
hereinbelow. Notices, demands and requests shall be deemed served or given for all purposes
hereunder at the time such notice, demand or request shall be personally delivered,the Fax
thereof is received, or three business days following the date of mailing or forwarding by
overnight delivery service as aforesaid. Any refusal to accept delivery of a written notice
delivered or mailed to the addresses set forth below shall be deemed to be receipt of such notice
for the purposes of this Section. The County or Smith Trust may change its address for notice or
Fax number by delivering written notice to the other party in the manner set forth hereinbefore,
which notice shall expressly state that it is being given pursuant to this Section, and thereafter
such party's notice address or Fax number shall be the new address or Fax number.
6.2. Addresses: The addresses of the County and Smith Trust for notices shall
be as follows:
The County: County of Hawai`i
25 Aupuni Street
Hilo, Hawai`i 96720
Smith Trust: CAROLINE MAE SMITH
Trustee of the Alfred Whitaker Smith Revocable Trust
P. O. Box 2565
Kealakekua, Hawai`i 96750-2565
Telephone Number: (808) 323-2771
6
CAROLINE MAE SMITH
Trustee of the Alfred Whitaker Smith Revocable Trust
7530 Eucalyptus Hill
La Mesa, California 91942
Telephone Number(619)460-0897
7. Miscellaneous Provisions:
7.1 Independent Review: Smith Trust and the County have each had an
opportunity to make a full and independent review and investigation of all alternatives with
respect to the matters that are the subject of this Agreement have carefully read this Agreement
and the documents and instruments executed in connection with this Agreement, and have
voluntarily and without coercion or duress of any kind, entered into this Agreement and the
documents and instruments executed in connection with this Agreement. Smith Trust and the
County each represents and agrees that it has not been influenced to any extend whatsoever to
enter into this Agreement by any representation made to it or its attorneys, accountants, advisors,
or representatives, either directly or indirectly,by any other party of any person acting on behalf
of any such party, either directly or indirectly, other than as is expressly stated in this Agreement.
Smith Trust and the County each further represents and agrees that it understands the contents
and legal effect of this Agreement, and that it has obtained or had an adequate opportunity to
obtain all information and documents, and has fully informed itself of all facts which it deems
material or relevant to its decision to enter into this Agreement.
7.2. Time of the Essence: Time is of the essence of this Agreement.
7.3. Waivers, etc.: The delay or failure of Smith Trust or the County to
exercise any of its rights hereunder shall not be deemed by the other party to constitute a waiver
or such right unless the party possessing such right has clearly and expressly given notice of such
waiver to the other party hereto. No waiver, modification, or amendment of any of the
provisions of this Agreement shall be deemed, or shall constitute, a waiver, modification, or
amendment of any other provision, whether or not similar, nor shall any waiver, modification or
amendment constitute a continuing waiver, modification or amendment.
7.4. Amendments to Agreement: Neither this Agreement nor any provision
hereof may be waived, modified or amended except by an instrument signed by the party against
whom the enforcement of such waiver,modification or amendment is sought, and then only to
the extent set forth in such instrument.
7.5. Further Assurances: The County and Smith Trust, from time to time,upon
request of the other party and without further consideration will, at its own expense, execute and
deliver such documents, certificates, agreements and other writings and take such further actions
as such other party may reasonably request(i)to consummate fully and implement expeditiously
the transactions described in, or otherwise contemplated by this Agreement, or(ii)to otherwise
effectuate the intent and purposes of this Agreement.
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7.6. No Third Party Beneficiaries: Nothing contained in this Agreement
whether express or implied, is intended to confer upon any person other than the County or
Smith Trust, and their respective successors and permitted assigns, any rights or remedies under
or by reason of this Agreement,nor is anything in this Agreement intended to relieve or
discharge the liability of any other entity to any party hereto, nor shall any provision hereof give
any entity any right of subrogation against the County or Smith Trust.
7.7. Captions: The captions in this Agreement are inserted for convenience of
reference only and in no way define, describe or limit the scope or intent of this Agreement or
any of the provisions hereof.
7.8. Partial Invalidity: If any provision hereof or the application thereof to any
person or circumstance shall to any extend be invalid or unenforceable,the remaining provisions
hereof, or the application of such provision to persons or circumstances other than those as to
which it is invalid or unenforceable, shall not be affected thereby.
7.9. Interpretation of Terms: As used in this Agreement,the masculine shall
include the feminine,the singular shall include the plural, and the plural shall include the
singular, as the context may require.
7.10. Successors and Assigns: This Agreement shall be binding upon and shall
inure to the benefit of Smith Trust and its respective successors and assigns.
7.11. Counterparts: This Agreement may be executed in two or more
counterparts, and shall be deemed to have become effective when and only when one or more of
such counterparts shall have been signed by or on behalf of both the County and Smith Trust,
although it shall not be necessary that any single counterpart is signed by or on behalf of each.
All such counterparts shall be deemed to constitute one and the same instrument. An executed
counterpart of this Agreement transmitted and received by facsimile shall be deemed for all
purposes to be an original, executed counterpart hereof. Duplicated unexecuted pages of the
counterparts (whether original or received by facsimile)may be discarded and the remaining
pages assembled as one document.
7.12. Authority of Persons Executing: Each person signing below represents
and warrants that such person has the requisite authority to bind the entity on whose behalf such
person is signing. However, this Agreement is subject to the approval of the County Council.
7.13. Merger: This Agreement embodies and constitutes the entire
understanding between the County and Smith Trust with respect to the transaction described
herein, and all prior agreements,understandings, representations and statements, oral or written,
are hereby merged in this Agreement.
7.14. Agreement Deemed Drafted by All Parties: For purposes of interpreting
and construing the terms hereof,this Agreement and each portion of this Agreement shall be
deemed to have been drafted by the Smith Trust and the County in equal measure, and
accordingly shall not be construed against either party.
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7.15. Governing Law: This Agreement shall be governed by and construed in
accordance with the laws of the State of Hawai`i, without giving effect to doctrines relating to
conflicts of law.
IN WITNESS WHEREOF, the County and Smith Trust have executed this Agreement as
of the date first above written.
Recommended for Approval by: COUNTY OF HAWAII
DEPARTMENT OF PUBLIC WORKS
� 1(7. 60/1/Lijpitity
N H.W. LEE, P.E.
Its Director
Approved as to Form and Legality:
JOSEPH K.KAMELAMELA
Senior Deputy Corporation Counsel
CA/UL6Y11> /1
CAROLINE MAE SMITH, Trustee of the
Alfred Whitaker Smith Revocable Trust
under unrecorded Trust Agreement dated
August 2, 1985, as completely restated and
amended by unrecorded Fifth Amendment
dated March 4, 1993
9
STATE OF HAWAII L `
4Yt amk∎ ) SS.
CAB COUNTY OF )
l j�
On this l ` day of t- , 2013, before me personally appeared
CAROLINE MAE SMITH, Trustee of the Alfred Whitaker Smith Revocable Trust under
unrecorded Trust Agreement dated August 2, 1985, as completely restated and amended by
unrecorded Fifth Amendment dated March 4, 1993,to me known to be the person described in
and who executed the foregoing instrument and acknowledged that CAROLINE MAE SMITH,
Trustee of the Alfred Whitaker Smith Revocable Trust under unrecorded Trust Agreement dated
August 2, 1985, as completely restated and amended by unrecorded Fifth Amendment dated
March 4, 1993, executed the same as CAROLINE MAE SMITH, Trustee of the Alfred Whitaker
Smith Revocable Trust under unrecorded Trust Agreement dated August 2, 1985, as completely
restated and amended by unrecorded Fifth Amendment dated .rch 4, 1993's free act and deed.
ANN 11 ►� ∎�-� '01
NOT
Notary Public, S .te of Hawai`i
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Ff Commission No
93-720 I Print name
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NOTARY CERTIFICATION
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Doc. Date: i 6 ix Pages:
Notary
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Description: Agreement Circuit: Third
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Notary ignature Date aoK
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93720
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STATE OF HAWAII )
) SS.
COUNTY OF HAWAII )
On this 24th day of June, 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. ! 11111 I 11
h;
Notary PuMP State o �1-.wail, 3rd Jud. Cir.
Printed Name: Paulette Cainglit
My Commission Expires: 12/16/2013
NOTARY CERTIFICATION
Document Description: Memorandum of Agreement for the Mamalahoa Bypass Highway
by the County of Hawaii and Caroline Mae Smith,Trustee of the Alfred Whitaker Smith
Revocable Trust under Unrecorded Trust Agreement Dated August 2, 1985, as Completely
Restated and Amended by Unrecorded Fifth Amendment Dated March 4, 1993.
Doc. Date: June 19, 2013 ❑ undated at time of notarization.
No. of Pages: 11 + Exhibits Circuit: Third
Atli (4� j
June 24, 2013
Notary ' ign.,ture Date
Notary N- e: Paulett ,Cainglit
11
All of that certain parcel of land situated on the Southwesterly side of Napoopoo Road
and on the Northwesterly side of Kaawaloa Road, Kaawaloa, South Kona, Hawaii, being a
portion of Land Commissioners Award 8452:10 to A. Keohokalole, R. P. 4386 and 7532, area
4.745 acres,being the same parcel of land conveyed from Alfred Whitaker Smith,as Grantor, to
Alfred Whitaker Smith, Trustee of the "Alfred Whitaker Smith Revocable Trust," under
unrecorded Trust Agreement dated August 2, 1985, as completely restated and amended by
unrecorded Fifth Amendment dated March 4, 1993, a short form of which is recorded at the
Bureau of Conveyances, as Grantee, as Parcel FOURTH of that certain Warranty Deed dated
November 4, 1994,recorded at the Bureau of Conveyances of the State of Hawaii as Document
No. 94-185753, bearing Third Division Tax Map Key No. 8-1-009-004, more particularly
described by survey of West Thomas&Associates, Inc.,dated May 17, 1989,as follows:
Beginning at the Southeasterly corner of this parcel of land, being also the
Northeasterly corner of parcel 5 of Tax Map Key 8-1-09(3`d Division),and being a point
on the Southwesterly side of Napoopoo Road, the coordinates of said point of beginning
referred to Government Survey Triangulation Station "LAE 0 KANONI" being
22,335.21 feet North and 342.28 feet West and running by azimuths measured clockwise
from True South:
1. 61° 50' 259.61 feet along Parcel 5 of TMK: 8-1-09 (3rd Division)
and along the remainder of Royal Patents 4386
and 7532, Land Commissioners Award 8452,
Apana 10 to A. Keohokalole to a point;
2. 335° 39' 30" 180.0] feet along Parcel 5 of TMK 8-1-09 (3`1 Division)
and along the remainder of Royal Patents 4386
and 7532, Land Commissioners Award 8452,
Apana 10 to A. Keohokalole to a point;
3. 59° 47' 40" 96.82 feet along stonewall and along the Northwesterly
side of Kaawaloa Road to a point;
4. 60° 07' 30" 163.58 feet along the Northwesterly side of Kaawaloa
Road to a point;
5. 155° 39' 30" 491.13 feet along the remainder of Royal Patents 4386
and 7532, Land Commissioners Award 8452,
Apana 10 to A. Keohokalole to a point;
6. 241° 50' 542.12 feet along the remainder of Royal Patents 4386
and 7532, Land Commissioners Award 8452,
Apana 10 to A. Keohokalole to a point;
EXHIBIT "A"
Thence, for the next four (4) courses following along the Southwesterly side of
Napoopoo Road:
Thence, following on a curve to the right,with a radius of 350.00 feet, the chord azimuth
and distance being:
7. 340° 10' 27" 47.93 feet to a point;
8. 344° 06' 122.95 feet to a point;
Thence, following on a curve to the left,with a radius of 325.00 feet, the chord azimuth
and distance being:
9. 338° 58' 30" 58.06 feet to a point;
10. 333° 51' 76.98 feet to the point of beginning and containing an
area of 4.745 acres.
SUBJECT TO Easement 1 (50-Ft. Wide) for access and utility purposes over,
across and under a portion of this parcel pursuant to Grant of Easement dated September
7, 1993,recorded at the Bureau of Conveyances of the State of Hawaii as Document No.
93-159060,which portion is more particularly described as follows:
Beginning at the Northeasterly corner of this easement, said point of beginning
bearing 340° 10'27"47.93 feet and 344°06' 10.00 feet from the Southwesterly corner of
Lot 1 and being a point on the Westerly side of Napoopoo Road,the:coordinates of said
point of beginning referred to Government Survey Triangulation Station "LAE 0
KANONI" being 22,567.14 feet North and 427.99 feet West and running by azimuths
measured clockwise from True South:
1. 334° 06' 100.00 feet along the Westerly side of Napoopoo Road to
a point;
Thence, for the next nine (9) courses following along the remainder of Royal Patents
4386 and 7532,Land Commissioners Award 8452,Apana 10 to A.Keohokalole:
Thence,following a curve to the left with a radius of 25.00 feet,the chord azimuth and
distance being:
2. 119° 06' 35.36 feet to a point;
3. 74° 06' 25.00 feet to a point;
;.s
Thence, following on a curve to the right with a radius of 105.00 feet,the chord azimuth
and distance being:
4. 110° 33' 124.77 feet to a point;
5. 147° 00' 26.19 feet to a point;
6. 241° 50' 50.18 feet along Lot 1 to a point;
7. 327° 00' 21.96 feet to a point;
Thence,following on a curve to the left with a radius of 55.00 feet,the chord azimuth and
distance being:
8. 290° 33' 65.35 feet to a point;
9. 254° 06' 25.00 feet to a point;
Thence,following on a curve to the left with a radius of 25.00 feet,the chord azimuth and
distance being:
10. 209° 06' 35.36 feet to the point of beginning and containing an
y'1 area of 9,062 Square Feet.
7 / 1 N� ' �19 f. /�•
.- f ExIsUng H.adwall New Dian Manhole Manhole L` �t •.�r ���� C"r\
:� � p� To Remain g 0- •`�i •--.7-.,•_44:, %� \.\ ",`%
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Retaining_ Ft. l `
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Drainage Area P2 - •:
PARCEL 25
OF MAMALAHOA BYPASS ROAD
BEING A PORTION OF ROYAL PATENT 4386 AND 7532,
LAND COMMISSION AWARD 8452,APANA 10 TO A. KEOHOKALOLE
AT KAAWALOA,SOUTH KONA, ISLAND OF HAWAII,HAWAII
Beginning at the north corner of this parcel of land, being also the southeast corner of Parcel 24-A of
Mamalahoa Bypass Road,same being a portion of Lot 1 of"Captain Cook Village",same being also a portion of
R.P. 4386 and 7532,L.C.Aw. 8452,Ap. 10 to A. Keohokalole and along the west side of Napoopoo Road, the
coordinates of said point of beginning referred to Government Survey Triangulation Station"PUU OHAU",being
6,576.30 feet South and 11,920.29 feet East and thence running by azimuths measured clockwise from true South:
1. Thence along the west side of Napoopoo Road,on a curve to the right with a radius of 350.00 feet,the
chord azimuth and distance being
340° 07' 57" 47.93 feet;
2. 344° 03' 30" 122.95 feet along the west side of Napoopoo Road;
3. Thence along the west side of Napoopoo Road,on a curve to the left with a radius of 325.00 feet,the
chord azimuth and distance being
338° 56' 58.06 feet;
4. 333° 48' 30" 76.98 feet along the west side of Napoopoo Road;
5. 61° 47' 30" 29.62 feet along Parcel 26 of Mamalahoa Bypass Road,being a
portion of R.P.4386 and 7532,L.C.Aw. 8452,Ap. 10 to
A.Keohokalole;
6. 133° 30' 57.09 feet along Lot 25-A,being a portion of R.P. 4386 and
7532,L.C.Aw. 8452,Ap. 10 to A. Keohokalole;
-1-
420Waiakamita Road Planning
Suite 411 �`' Engineering
Honolulu Hawaii 96817-4941 • Environmental Services
Telephone 808 8421133 R. M. TOWEL CORPORATION Surveying Ph etry
Fax 808 842 1937
eMail mrtowill @i-one.com S I N C E 1 9 3 0 Construction Management
EXHIBIT "C"
7. Thence along Lot 25-A,being a portion of R.P.4386 and 7532,L.C.Aw. 8452,Ap. 10 to A.
Keohokalole,on a curve to the right with a radius 242.00
feet,the chord azimuth and distance being.
156° 22'22.5" 188.12 feet;
8. 105° 56' 15" 86.70 feet along Lot 25-A,being a portion of R.P. 4386 and
7532,L.C.Aw. 8452,Ap. 10 to A. Keohokalole;
9. 241°47'30" 137.72 feet along Parcel 25,being a portion of R.P. 4386 and
7532,L.C.Aw. 8452,Ap. 10 to A.Keohokalole to the
point of beginning and containing an area of 0.480 Acre.
Description Prepared by:
R.M.TOWILL CORPORATION
73-5574 Maiau Street,Bay 11B Ryan M.Suzuki
Kailua-Kona,Hawaii 96740 Licensed Professional Land Surveyor
April 6,2001 Certificate Number 10059
Revised March 6,2003
(Tax Map Key: 8-1-09: por. 4)
—2—
420Waiakamilo Road /'' Planning
Suite 411 AN. Engineering
Honolulu Hawaii 96817-4941 Environmental Services
Telephone 808 842 1133 R. M. TOWILL CORPORATION Photogrammetry
Fax 808 842 1937 Surveying
eMail rmtowill@i-one.corn SINCE 1 9 3 o Construction Management
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PARCEL 26
OF MAMALAHOA BYPASS ROAD
BEING A PORTION OF ROYAL PATENT 4386 AND 7532,
LAND COMMISSION AWARD 8452,APANA 10 TO A.KEOHOKALOLE
AT KAAWALOA,SOUTH KONA, ISLAND OF HAWAII,HAWAII
Beginning at the north corner of this parcel of land, being also the southeast corner of Parcel 25 of
Mamalahoa Bypass Road, being a portion of R.P. 4386 and 7532,L.C.Aw. 8452,Ap. 10 to A. Keohokalole and
along the west side of Napoopoo Road,the coordinates of said point of beginning referred to Government Survey
Triangulation Station"PUU OHAU", being 6,862.85 feet South and 12,025.20 feet East and thence running by
azimuths measured clockwise from true South:
1. 333° 48'30" 32.20 feet along the west side of Napoopoo Road;
2. Thence along the west side of Napoopoo Road,on a curve to the right with a radius of 150.00 feet,the
chord azimuth and distance being:
345° 21' 60.02 feet;
3. 356° 53'30" 76.85 feet along the west side of Napoopoo Road;
4. Thence along the intersection of Napoopoo and Kaawaloa Roads,on a curve to the right with a radius
of 30.00 feet,the chord azimuth and distance being:
30° 14'31" 32.98 feet;
5. 193° 52' 28.97 feet along Lot 26-A,being a portion of R.P. 4386 and
7532,L.C.Aw. 8452,Ap. 10 to A. Keohokalole;
6. Thence along Lot 26-A,being a portion of R.P.4386 and 7532,L.C.Aw. 8452,Ap. 10 to A.
Keohokalole,on a curve to the left with a radius of
-3.-
420 Waiakamilo Road 011 Planning
Suite 411 ` Engineering
Honolulu Hawaii 96817.4941 Environmental Services
Telephone 808 8421133 Photogrammetry
Fax 808 842 1937 R. M. TOWILL CORPORATION Surveying
eMail rmtowill @i-one.corn S I N C E 1 9 3 0 Construction Management
269.00 feet,the chord azimuth and distance being:
165° 12'21" 141.65 feet;
7. 133° 30' 19.05 feet along Lot 26-A,being a portion of R.P. 4386 and
7532,L.C.Aw. 8452,Ap. 10 to A. Keohokalole;
8. 241° 47'30" 29.62 feet along Parcel 25 of Mamalahoa Bypass Road, same
being also a portion of R.P. 4386 and 7532,L.C.Aw.
8452,Ap. 10 to A. Keohokalole to the point of beginning
and containing an area of 0.069 Acre.
Description Prepared by:
R. M.TOWILL CORPORATION
73-5574 Maiau Street,Bay 11B Ryan M. Suzuki
Kailua-Kona,Hawaii 96740 Licensed Professional Land Surveyor
April 6,2001 Certificate Number 10059
Revised March 6,2003
(Tax Map Key: 8-1-09:por. 5)
—2—
420 Waiakamilo Road f>/I' Planning
,l Suite 411 "`` Engineering
Honolulu Hawaii 96817-4941 Environmental Services
Telephone 808 8421133 Photogrammetry
Fax 808 842 1937 R. M. TOWILL CORPORATION Surveying
eMail rmtowilI i-one.com S I N C E 1 9 3 0 Construction Management
9I
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SWALE SHLO. PAVEMENT PAVEMENT SHLD. - SWALE
lJ AX 2% 2% .1 P REY ER0
6 � PR
2" ASPHALT CONCRETE(TYP.)
6" BASALT BASE COURSE(TYP.)
4" ASPHALT CONCRETE
8" BASALT BASE COURSE
6" BASALT SUBBASE COURSE
f
FIGURE 3B
BYPASS CROSS SECTION B
MAMALAHOA HIGHWAY BYPASS ROAD
MO.TU.WUINOft OUMmOP HAWAII ,
NOT TO SCALE
EXHIBIT "D"
LAND COURT REGULAR SYSTEM
(AREA ABOVE RESERVED FOR RECORDING INFORMATION)
After Recordation, Return by®Mail or E Pick-up Phone#:
FILL IN NAME AND ADDRESS BELOW:
Office of the Corporation Counsel(JKK)
101 Aupuni Street,Suite 325
Hilo,Hawaii 96720
DOCUMENT CONTAINS PAGES
TITLE OF DOCUMENT: LIMITED WARRANTY DEED
(IN LIEU OF CONDEMNATION)
PARTIES TO DOCUMENT
GRANTOR: CAROLINE MAE SMITH,Trustee of the Alfred Whitaker Smith
Revocable Trust under unrecorded Trust Agreement dated
August 2, 1985,as completely restated and amended by unrecorded
Fifth Amendment dated March 4, 1993
7530 Eucalyptus Hill
La Mesa,California 91942
GRANTEE: COUNTY OF HAWAII
25 Aupuni Street
Hilo,Hawai`i 96720
AFFECTS TAX MAP KEYS: (3)8-1-009:004(por.)and 8-1-009:005(por.)
EXHIBIT "E"
LIMITED WARRANTY DEED
(IN LIEU OF CONDEMNATION)
KNOW ALL MEN BY THESE PRESENTS:
That,CAROLINE MAE SMITH,Trustee of the Alfred Whitaker Smithi Revocable Trust
under unrecorded Trust Agreement dated August 2, 1985,as completely restated and amended by
unrecorded Fifth Amendment dated March 4, 1983,whose mailing address is 7530 Eucalyptus Hill,
La Mesa,California 91942,hereinafter called the"Grantor,"in consideration of the sum of Ten
Dollars($10.00)and other valuable consideration to them paid by the COUNTY OF HAWAII,a
municipal corporation of the State of Hawai`i,whose principal place of business and mailing address
is County Building,25 Aupuni Street,Hilo,County and State of Hawai`i 96720,hereinafter called the
"Grantee,"the receipt of which will be acknowledged upon closing,do hereby grant,bargain,sell and
convey unto the Grantee, its successors and assigns, in fee simple,forever,all of their undivided
interest in and to the following real property:
All of that certain real property described in Exhibit"A"attached hereto and
made a part hereof.
TO HAVE AND TO HOLD the same,together with all rights, improvements,easements,
privileges and appurtenances thereunto belonging or in anywise appertaining,or held and enjoyed
therewith, unto the Grantee, its successors and assigns, in fee simple,forever.
AND the Grantor,for herself,her heirs,devisees,personal representatives and assigns,do
hereby covenant with the Grantee,its successors and assigns,that she is seised in fee simple of the
above-described premises;that the same is free and clear of and from all encumbrances,except as
described herein,and except for the lien of real property taxes not yet by law required to be paid and,
further,except for those made or suffered by Grantee;that she has good right to sell and convey the
same as aforesaid;and that she will,and her heirs,devisees,personal representatives and assigns will,
2
WARRANT AND DEFEND the same unto the Grantee,its successors and assigns,forever,against
the lawful claims and demands of all persons whomsoever.
IN WITNESS WHEREOF,the said Grantor has caused these presents to be exec -d this
day of ,2013.
_kAlf �1 , 44
CAROL AE SMITH,Trustee of the
Alfred Wh' 41 er Smith Revocable Trust
under u -corded Trust Agreement dated
Augu , 1985,as completely restated and
am- ded by unrecorded Fifth Amendment
d• ed March 4, 1993
APPROVED AS TO FORM
AND LEGALITY:
JOSEPH K.KAMELAMELA
Senior Deputy Corporation Counsel
County of Hawai`i
3
STATE OF HAWAII )
WAI1 ) sS.
4cH AND COUNTY )
On this \ Ci day of jkA,ht ,2013,before me personally •ppeared CAROLINE
MAE SMITH,Trustee of the Alfred Whitaker Smith Revocable Trust un.-r unrecorded Trust
Agreement dated August 2, 1985,as completely restated and amende' by unrecorded Fifth
Amendment dated March 4, 1993,to me known to be the person A escribed in and who executed the
foregoing instrument and acknowledged that CAROLINE E SMITH,Trustee of the Alfred
Whitaker Smith Revocable Trust under unrecorded Trus Agreement dated August 2, 1985,as
completely restated and amended by unrecorded Fift Amendment dated March 4, 1993,executed the
same as CAROLINE MAE SMITH,Trustee oft - Alfred Whitaker Smith Revocable Trust under
unrecorded Trust Agreement dated August 2, •85,as completely restated and amended by
unrecorded Fifth Amendment dated Marc 4, 1993's free act and deed.
9:)
qz , I, Notary Public, .te of Hawaii
i� NOTARY 0 °0 ccV ,tq ►1 _ MrS
PUBLIC
Commission No. / Print name
t, co 93-720
,I�4. OF �P, My commission expires: ` .& ` ' �1(3
NOTARY CERTIFIC• ION STATEMENT
Document Identificati• or Description:Limited Warranty Deed(in Lieu of Condemnation)
TMKS:(3)8-1-009:014(por.)and 8-1-0J9:005 (por.)
Doc.Date: or Vendated,aLtime of notarization.
No ages: Jurisdiction: '' Circuit
lb t '1 ( ( f �,
Signature of .AD/ Date of Notarization and ,�5< - c.•
Sbe4 f ; �, n A` Certification Statement % I , ARY c IC cl)
Comm' No. '
Printed Namg� f Notary �/j 93-720
1111 OF .‘JPs�1
4
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EXHIBIT "F"
It
'Tba s;
cc Ip
1 I -set ; sot • ` its`
IDTI4 VilX'sb •
i .6 Ago Rat L di
FE1gGC , j PAYED 5NOUL.DER
lb t W1614 i I - 1
R04.1141,116 WM r 1,6Ok 4,0
EuJ .714WEM.6t1T
•
i
NAPOoR30 SECTION - *TA._2+50
LoOKING NCRTH
04oT To Si-ALE)
VIAR►E!' ,
UNPI.1Ct) .544ou(-Ctg-
r'1� ,te - ^ E 4titT 1W igWA$L
k-NEW'DRIVEWAY
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$3 To Z
CIVR PA T14 Ss PeS)
r— L.-} r---', --3
_ OR(V E VWWA`( 5EcT io t1
04 o T "C 0 S CAL9
EXHIBIT "G"
FENCE SPECIFICATIONS
MATERIALS
CORNER POSTS & BRACES 2" CHANNEL GALV.
TEE POST T133 GALV.
WIRE 4 PT. BARB CLASS 3 GALV.
(BEZINAL COATING)
GATES
10' PER AGREEMENT
MD DOUBLE 1 -7/8" GALV. TUBE
GATE POSTS - 4" PIPE OR CHANNEL - GALV.
NOTE:
GATES ARE TO BE MD TUBULAR GALV. STEEL OF THE TYPE AVAILABLE
AT K. R. OLSON IN WAIMEA. GATE POSTS ARE ALSO TO BE MINIMUM
4" CONCRETE FILLED GALV. STEEL WITH CONCRETE BASE AND CAPPED.
ALL FENCE TO BE TREATED WITH "BEZINAL" COATING.
12'-0"
<8' SPACING AT CORNERS>
10"
10"
54„ 10"
7.
1 O
1 0"
;. 0 � , . TEE POST DRILLED
/ CONCRETE " IF SET IN ROCK, OR IF
AT CORNERS AND SET IN SOIL THEN SOIL
GATE POSTS. TO BE COMPACTED AND/OR POST
TO BE SET IN CONCRETE OR SET WITh
ANCHORS AND TIE-DOWNS AS MAY BE
REASONABLY NECESSARY TO }PROPERLY
STABILIZE FENCE.
EXHIBIT "H"
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f 1..' � � . �
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RETAIN ING WAU. SAMPLE
MAMA,LAN OA 1416µWAy 4,
1GQ1.1A1A/AENA 4G Roo t_
EXHIBIT "I"