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Home My WebLink AboutRES 140 Draft 03 2012-2014 ••4pJMtY OF ki COUNTY OF HAWAII STATE OF HAWAII RESOLUTION NO. 149 13 (DRAFT 3) 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 Hawai`i; 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 Hawai`i, 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 Hawai`i 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 Hawai`i; 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 Hilo , Hawai`i, this 7th day of March 2014. INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAII COUNTY COUNCIL ROLL CALL VOTE County of Hawai`i AYES NOES ABS EX Hilo, Hawaii EOFF X FORD X I hereby certify that the foregoing RESOLUTION was by KANUHA X the vote indicated to the right hereof adopted by the COUNCIL of the County of Hawaii on March 7, 2014 KERN X ILAGAN X ONISHI X ATTEST: POINDEXTER X YOSHIMOTO X 514WL WILLE X 7 1 1 0 Reference: C-343.39/FC-132 COUNTY CLERK CHAIRPERSON & PRESIDING OFFICER RESOLUTION NO. Mr 313 - 2 - LAND COUR'!' REGULAR SYSTEM Return By Mail I X I Pick-Up I To C ARLSMITH BALL LLP 121 Watanuenue Avenue Hilo,HI 96720 Attention:Steven S.C.Lim TOTAL NUMBER OF PAGES _Tele.phone-(808)935-6644 TITLE OF DOCUMENT. GRANT OF PUBLIC ACCESS EASEMENTS PARTIES TO DOCI.?vtF:N I. 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 4816-0044-2898/2-10-14 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 -2- 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 ofFinal 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 ofHawaii,A copy of the recorded shoreline public pedestrian easements shall be submitted to the Planning Department within 6 months from the date of issuance ofFinal 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 fisherman'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 constnicted for said purposes(collectively"Public Access Easements"),as follows: -4- Public Access ParkinE 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 teen"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: -5- 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 terns"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 - 7- 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] - 8- 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 _ ,/'6<4 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: -9- STATE OF /(/e /4<(Q Gig /l )55. COUNTY OF � ) On this /1 day of d/:=C r'71 h r ,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. wa Aers Name: ✓!i tyra /(z 7S '" • STATE~ OF NEVADA Notary Public,In and For Said County and State ". 11t Donnirlm Evrec 12'13718 Creme IC arms I My commission expires: /2 -1, • 7-j,6 / .■ • s t'' k.i . 6 4 .. A5�XN / / �I s:k c 2•dR `x I 3 s. r j Yi G E C*, iI i`R _ o- 7 .0 L fe' ' H -,- ..... I ...... ' \ , 1 ry, • P . ' _ I , . ---'', •,-, , X s • ' lll -• .'. , . ' , • .,;•,:, ;:', , i'; ■ , 7:..-...° ';'; ' '' 1 ^ II t / ■ \ I • ' ,,.'1.: , . 5.,i■ . •....'• . .... . ; '•'i 1. 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