HomeMy WebLinkAboutRES 140 Draft 02 2012-2014 4o;M<Y OS......,
COUNTY OF HAWAII STATE OF HAWAII
RESOLUTION NO. 140 13
(DRAFT 2)
RESOLUTION ACCEPTING A GRANT OF EASEMENTS FROM KOHALA KAI, LLC
FOR PUBLIC ACCESS PURPOSES.
BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII.
WHEREAS, KOHALA KAI, LLC, owner of the real property identified by Tax Map
Keys: (3) 5-9-017:001 to 008 inclusive, situated in Kahua 1st, Kahua and Waika, District of
North Kohala, County and State of Hawaii; and
WHEREAS, KOHALA KAI, LLC was issued Special Management Area Minor Use
Permit No. 84 by the Planning Director on December 21, 1999, as amended on September 19,
2011, to allow the development of a seven (7) lot subdivision, which required the applicant to
submit a shoreline public access plan for the review and approval by the Planning Director that
provided mauka-makai and lateral shoreline public access pedestrian easements within the
project site; and
WHEREAS, Subdivision Nos. 7495 and 7635 were approved by the Planning Director
on December 26, 2001 and January 15, 2003, respectively; and
WHEREAS, Special Management Area Major Use Permit No. 06-000010 (SMA 06-10)
was issued by the Planning Commission on June 16, 2006 to allow the development of a five (5)
lot subdivision within Bulk Lot 77 along with related improvements, which required the
applicant to construct a mauka-makai and lateral walkable access trail and to provide a minimum
of three (3)public parking spaces in close proximity of the mauka end of the mauka-makai
pedestrian trail; and
WHEREAS, KOHALA KAI, LLC was issued Tentative Approval for Sub 06-000297 on
February 13, 2009, which included a condition of Final Approval requiring the subdivider to
comply with all conditions of SMA 06-10; and
WHEREAS, the County of Hawai`i would like to acquire public access along the length
of the North Kohala coastline; and
WHEREAS, the North Kohala Community Development Plan 2008 was adopted by
Ordinance No. 2008-151 on November 5, 2008 call for a continuous coastal ("lateral") path
stretching from Pololu to Kawaihae, together with numerous mauka-makai accesses from Akoni
Pule Highway to the shore; and
WHEREAS, KOHALA KAI, LLC is desirous of granting the County of Hawai`i the
vehicular, parking and pedestrian easements, which easements are more particularly described
and delineated in Exhibit "1" attached hereto as a Grant of Public Access Easements; and
WHEREAS, Article XIII, Section 13-12 of the Hawai`i County Charter,provides that
the Council, on behalf of the County of Hawaii, may accept gifts or donations of money,
securities or other personal property or of real estate or any interest in real estate.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY
OF HAWAII, in accordance with Article XIII, Section 13-12 of the Hawai`i County Charter,
the County of Hawaii accepts the grant of Easements described and delineated in Exhibit"1"
attached hereto, from the KOHALA KAI, LLC.
BE IT FINALLY RESOLVED that the Clerk of the County of Hawai`i is directed to
transmit copies of this Resolution to: The Honorable William P. Kenoi, Mayor of the County of
Hawaii; Duane Kanuha, Director of the County of Hawai`i Planning Department; Clayton
Honma, Director of the County of Hawai`i Department of Parks and Recreation; Lincoln Ashida,
Corporation Counsel for the County of Hawai`i; William Brilhante, Deputy Corporation Counsel
for the County of Hawai`i; and KOHALA KAI, LLC, c/o Steven Lim, Esq. of Carlsmith Ball,
LLC, P.O. Box 686, Hilo, HI 96721-0686.
Dated at , Hawai`i, this day of , 20
INTRODUCED BY:
COUNCIL MEMBER, COUNTY OF HAWAI`I
COUNTY COUNCIL ROLL CALL VOTE
County of Hawai`i AYES NOES ABS EX
Hilo, Hawai`i EOFF
FORD
I hereby certify that the foregoing RESOLUTION was by KANUHA
the vote indicated to the right hereof adopted by the COUNCIL of the KERN
County of Hawai`i on
ILAGAN
ONISHI
ATTEST: POINDEXTER
YOSHIMOTO
WILLIE
Reference: C-343. 32/FC
COUNTY CLERK CHAIRPERSON & PRESIDING OFFICER RESOLUTION NO. 140 13
(DRAFT 2)
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LAND COURT REGULAR SYSTEM
Return By Mail X Pick-Up To:
CARLSMITH BALL LLP
121 Waianuenue Avenue
Hilo,HI 96720
Attention: Steven S. C. Lim TOTAL NUMBER OF PAGES: —
Telephone: (808)935-6644
TITLE OF DOCUMENT:
GRANT OF PUBLIC ACCESS EASEMENTS
PARTIES TO DOCUMENT:
GRANTOR: KOHALA KAI, LLC, a Hawaii limited liability company,whose mailing
address is 2116 Redbird Drive, Las Vegas,Nevada 89134
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 KEYS(3)5-9-017: portions of 001 to 008,
inclusive
Affects TCT 702,169 4816-0044-2898/12-11-13
EXHIBIT 1
GRANT OF PUBLIC ACCESS EASEMENTS
THIS GRANT OF PUBLIC ACCESS EASEMENTS is made this day of
, 20 , by and between KOHALA KAI, LLC, a
Hawaii limited liability company, whose address is 2116 Redbird Drive, Las Vegas,Nevada
89134, 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 developer of those certain real properties situated in
Kahua, District of North Kohala, County and State of Hawaii, as identified in Subdivision
Nos. 7495 and 7635 approved by the County of Hawaii Planning Department on December
26, 2001 and January 15, 2003, respectively (collectively the "Project"); 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
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 property identified as TMK Nos.: (3) 5-9-017:001 to 008,
inclusive, and depicted on Exhibit 1 (the "Property") 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. 84
("SMM 84") on December 21, 1999, as amended on September 19, 2011, to allow the
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development of the 7-lot subdivision, being Lots 69 to 71, inclusive and Lots 75 to 77,
inclusive, of Land Court Consolidation 129, Map 9, and Lots 78 to 80, inclusive, of Land
Court Consolidation 129, Map 10, to be known as the "Kohala Kai Subdivision"; and
WHEREAS, Condition No. 3 of SMM 84 states as follows:
The applicant shall submit a shoreline public access plan for
the project site,for the review and approval by the Planning
Director, prior to or in conjunction with the filing of a
subdivision application for the proposed development. The
shoreline public access plan shall include, but not necessarily
be limited to, the provision of a mauka-makai and lateral
shoreline public access pedestrian easement within the project
site. These shoreline public access pedestrian easements shall
be reflected on the final plat map to be submitted to the
Planning Department for subdivision review. Prior to the
issuance of Final Subdivision Approval, the Planning
Department must approve the draft recorded instruments
conveying public access over the approved shoreline public
access pedestrian easement to the County of Hawaii, A copy of
the recorded shoreline public pedestrian easements shall be
submitted to the Planning Department within 6 months from the
date of issuance of Final Subdivision Approval.
WHEREAS, the County issued Special Management Area Major Use Permit No.
06-000010 ("SMA 06-10") on June 16, 2006, to allow the development of a 5-lot subdivision
within Bulk Lot 77 and related improvements; and
WHEREAS, Condition No. 14 of SMA 06-10 states as follows:
The applicant shall construct two walkable pedestrian access
trails. Once (sic) shall be from Akoni Pule Highway to the
shoreline and may be located on any of the lots on the subject
63.8-acre parcel. The other shall be a lateral shoreline access
and extend the width of the subject 63.8 acre parcel. The trails
shall be constructed or their construction shall be bonded prior
to Final Subdivision Approval, to standards meeting with the
approval of the Planning Director.
WHEREAS, Condition No. 15 of SMA 06-10 states as follows:
The applicant shall provide a minimum of three (3)public
parking spaces in close proximity to the mauka end of the
mauka-makai pedestrian trail.
- 3 -
WHEREAS, the recordation of this Grant of Public Access Easements at the Bureau
of Conveyances or the Land Court of the State of Hawaii, as applicable, shall constitute full
and final compliance with all public access requirements for the Project of Section 46-6.5,
Hawaii Revised Statutes ("HRS"), Chapter 205A, HRS, 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 Property identified in Exhibit 1 attached
hereto are proposed for subdivision or other uses and activities that are not listed as permitted
uses under the current zoning for the Property, the County may require further public access
over the portion or portions of the Property proposing such uses and activities; and
WHEREAS, the Grantee has requested, and the Grantor agrees to maintain, control
and repair two sections of the Lateral Pedestrian Public Access easement, affecting Lots 71,
77 and 78, in a good and safe condition, ordinary wear and tear excepted, as further delineated
on Exhibit 2; and
WHEREAS, the Grantee has requested, and the Grantor agrees to increase the width
of the lateral pedestrian public access easement from 10 feet wide to 20 feet wide, measured
from the makai edge of the reconstructed fishermans' trail in the mauka direction to address
safety concerns raised by the general public; and
WHEREAS, this Grant of Public Access Easements shall fully satisfy the
requirements of Condition No. 3 under SMM 84 and Condition Nos. 14 and 15 of
SMA 06-10.
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, 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:
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Public Access Parking Area: A public access parking easement for public access
parking purposes (contain a total area of 2,114 square feet) affecting Lot 80, as shown
on Map of Land Court Consolidation No. 129, being further identified as TMK
No.: (3) 5-9-017:004, as depicted on Exhibit 1.
Vehicular Public Access: A public access easement for vehicular public access
purposes (containing a total area of 1,172 square feet) affecting Lot 69, as shown on
Map of Land Court Consolidation No. 129, being further identified as TMK No.:
(3) 5-9-017:008 (por.), as depicted on Exhibit 1.
Mauka-Makai and Lateral Pedestrian Public Access: A public pedestrian access
easement on the existing trail for mauka-makai pedestrian access (being 10 feet wide),
and on the lateral pedestrian public access(being 20 feet wide, measured from the
makai edge of the reconstructed fishermans'trail in the mauka direction) (containing a
total area of acres) affecting Lots 71 and 75 to 80, inclusive, as shown on Map
, Land Court Consolidation No. 129, being further identified as TMK Nos.: (3) 5-
9-017:001 to 007, inclusive, all as depicted on Exhibit 1. The lateral pedestrian public
access trail shall have a cleared or constructed earthen surface to allow reasonable
pedestrian passage.
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. The County of Hawaii shall survey the new Public Access Easements, and
prepare an Amended Grant of Public Access Easements to be recorded against the Property
by the Grantor, or 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.
AND, Grantor and Grantee hereby covenant and agree as follows:
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1. The Public Access Easements shall not be officially open to the public
until this Grant of Public Access Easements has been accepted by the County of Hawaii. The
Public Access Easements as described hereinabove may be used by any members of the
public having the right to use such Public Access Easements, subject to, and upon the
following terms and conditions:
a. Restrictions on Use. The regulations 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
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. The Grantor
shall be solely responsible for maintaining, controlling and repairing
two sections of the Lateral Pedestrian Public Access easement, as
further delineated on Exhibit 2, affecting Lots 71, 77 and 78, in a good
and safe condition, ordinary wear and tear excepted. Other than the
maintenance, control and repair of the above two sections of the Lateral
Pedestrian Public Access easement, and 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 all remaining sections of the Public Access
Easements and/or sections thereto, 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, as
further delineated on Exhibit 1.
2. 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, Chapters 23 (Subdivision) and 34 (Public Access), Hawaii
County Code, and Planning Department Rule 21 relating to Public Access: Usage.
- 6 -
3. The Grantor and Grantee further agree that 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. The Grantor and Grantee further agree that the Grantee's acceptance of
this Grant of Public Access Easements is without prejudice to any existing rights to the
ownership or use of the historical Ala Loa alignment within the Property.
5. That Grantee and the members of the general public shall not use the
Public Access Easements for any purpose not expressly permitted herein.
6. 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 Easements by Grantee, all of which shall be payable to Grantee.
7. 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.
8. 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.
9. 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.
10. 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
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unexecuted and unacknowledged pages of the counterparts may be discarded and the
remaining pages assembled as one document.
11. 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 follows]
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IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day
and year first above written.
COUNTY OF HAWAII, a municipal KOHALA KAI, LLC
company a Hawaii limited liability company
By By _ 46(X' 'r
ERNEST W. MOODY
Its: Mayor Its Manager
AGREED AND ACCEPTED:
By
Planning Director
County of Hawaii
Date:
Agreed as to Form and Legality
By
Deputy Corporation Counsel
Date:
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STATE OF /v' 4 1 q )
/ ) ss.
aar"--COUNTY OF /\/ )
On this // day of ,&("2- G '11 , 2013 before me appeared
ERNEST W. MOODY, to me personally known, who being by me duly sworn, did say that
he is the Manager of KOHALA KAI, LLC, and that the instrument was signed pursuant to
authorization and on behalf of the individual, corporation, partnership or limited liability
company, and said ERNEST W. MOODY acknowledged said instrument to be the free act
and deed of the individual, corporation, partnership or limited liability company.
c Name: a t//d /r"v -S
• Notary Public, In and For Said County and State
rc
My commission expires: /2 -ii - 2-0 j,6
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