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HomeMy WebLinkAbout2024-09-25 C&J Coupe Exhibit List, Exhibits 1-5 (PL-BOA-2024-000104) Of Counsel: DAMON KEY LEONG KUPCHAK HASTERT Attorneys at Law A Law Corporation KENNETH R. KUPCHAK 1085-0 krk@hawaiilawyer.com MARK M. MURAKAMI 7342-0 mmm@hawailawyer.corn TOREN K. YAMAMOTO 11520-0 tky@hawaiilawyer.com 1003 Bishop Street, Suite 1600 Honolulu, Hawaii 96813 www.hawaiilawyer.corn Telephone: (808) 531-8031 Facsimile: (808) 533-2242 Attorneys for Intervenor C & J COUPE FAMILY LIMITED PARTNERSHIP BEFORE THE BOARD OF APPEALS PLANNING DEPARTMENT COUNTY OF HAWAII In the Matter of Appeal ) CASE. NO. PL-BOA-2024-000104 of ) ) INTERVENOR C & J COUPE FAMILY 1250 OCEANSIDE, LLC ) LIMITED PARTNERSHIP'S EXHIBIT ) LIST; EXHIBITS 1 TO 5; CERTIFICATE From the decision of the Planning ) OF SERVICE Director, dated April 29, 2024 (Docket ) No. 24-0001) ) INTERVENOR C & J COUPE FAMILY LIMITED PARTNERSHIP'S EXHIBIT LIST Intervenor C & J Coupe Family Limited Partnership's ("Coupe"), by and through its Attorneys, Damon Key Leong Kupchak Hastert, LLC, hereby indentifies the following exhibits that may be present at the hearing currently scheduled for October 11, 2024, and/or during any further proceedings in this matter. Intervenor C & J Coupe Family Description of Exhibit Limited Partnership's 1. September 10, 1999 Department of Public Works Memorandum regarding Hokuli'a Phase 1, Subdivision No/ 98-124; Oceanside 1250, North & South Kona, Hawaii, TMK No. 8-1-04-:03 & 56, Folder No. 81146 2. September 16, 1999 Road Maintenance Agreement 3. Declaration of Convenants, Conditions, and Restrictions for Hokuli'a Recorded on December 20, 1993 as Regular System Document No. 99200357 4. Complaint for Declaratory and Injunctive Relief; Appendices "A"— "B"; Summons 5. Plaintiff C&J Coupe Family Limited Partnership's Motion for Partial Summary Judgment; Memorandum in Support in Motion; Declaration of Charles Coupe; Declaration of Toren K. Yamamoto; Exhibit "A"-"E"; Certificate of Service Coupe reserves the right to supplement this Exhibit List and identify additional exhibits not expressly noted herein response to an pleadings,memorandum, arguments,exhibits, or witness identified or filed by any party. DATED: Honolulu, Hawaii, September 25, 2024. DAMON KEY LEONG KUPCHAK HASTERT /s/Toren K. Yamamoto_ KENNETH R. KUPCHAK MARK M. MURAKAMI TOREN K. YAMAMOTO Attorneys for Intervenor C & J FAMILY PARTNERSHIP 879864 DEPARTMENT OF PUBLIC WORKS COUNTY OF HAWAII HILO, HAWAII DATE September 10, 1999 Memorandum •Fo: Planning Department From: glen \.1) Kuba, Division Chief Engineering Division c_-, SUBJECT: SUBDIVISION NAME: Hokuli'a, Phase 1 ..j Subdivision No.: 98-124 `' Subdivider: Oceanside 1250 Location: North & South Kona, Hawaii TMK: 8-1-04:03 & 56 Folder No.: 81146 This is to inform you that we have found the surety bond amount of $28,384,000. to be adequate for the construction of roadways, drainage improvements, and street lights for the subject subdivision, including the I laleki'i St./Mamalahoa I Iwy. intersection. This does not include any costs associated with the construction of the vviter supply system. Because this amount does not include full width shoulders and swales, it is conditional upon the approval of a Maintenance Agreement, accompanied by a separate bond in the amount of $1,635,000. The surety bond amount of$23,516,000. for the Mamalahoa Highway Bypass is also found to be acceptable. This does not include costs for A A I:A or EIS permits, waterline improvements, or land acquisition. Please be informed that prior to our approval of the bond, an agreement may need to he executed between the County of Hawaii and the subdivider requiring a deed co\enant which informs lot ON\ners that they agree to grant any necessar\ construction right-of-entry and drainage easements within their property to correct unforeseen drainage problems. The deed covenant restriction shall terminate upon dedication of subdivision roadways. cc: Eng Hilo Eng Kona Planning Kona 008049 Exhibit 1 1 ROAD MAINTENANCE AGREEMENT THIS AGREEMENT, made, executed, and delivered this /G wday of.' kk, 19/9, by and between COUNTY OF HAWAII, whose business and post office address is 25 Aupuni Street, Hilo, Hawaii 96720, hereinafter"COUNTY," through its Department of Public Works, and 1250 OCEANSIDE PARTNERS, hereinafter"OCEANSIDE," whose business address is 78-6831 Ali'i Drive, Suite K-15, Kailua-Kona, Hawaii 96740. WITNESSETH: WHEREAS, OCEANSIDE is required to construct an extension to Haleki'i Street and a new road ("Road C"), which are hereinafter together referred to as "roadways," in connection with the subdivision of that certain real property situated at Honuaino 4, Hokukano 1 & 2, Kanaueue 1 & 2, Halekii, Keekee 1 & 2, Ilikahi, Kanakau 1 & 2, Kalukalu 1, 2 & 3, and Onouli. 1, North and South Kona, Island of Hawaii, County and State of Hawaii, identified by Tax Map Key No. 3`d Division 8-1-004:Parcel 56 and portion of Parcel 3 (hereinafter"Subdivision") on the preliminary plat map filed in the County of Hawaii Planning Department Subdivision file no. 98-124, which is referred to as "Hokuii'a Phase 1"; and WHEREAS, for the purposes of this Agreement, the words "roadway"and "roadways" shall mean the entire right-of-way within which vehicular traffic and other improvements will be constructed; and WHEREAS, OCEANSIDE is required to dedicate the roadway improvements to the COUNTY under Ordinance No. 96-8; and WHEREAS, the COUNTY's dedicable standards do not expressly provide for landscaping within certain portions of a roadway or for other variation in roadway facilities; and SCANNED SEP 0 8 2014 Exhibit 2 WHEREAS, in order to retain the rural character of the Subdivision, OCEANSIDE desires to construct said roadways to include landscaped areas and other facilities within the roadways, all in accordance with approved construction drawings; and WI IEREAS, the County has agreed that OCEANSIDE may construct the roadways in accordance with approved construction drawings and that, as a prerequisite of dedication of the roadway improvements OCEANSIDE shall complete and formally agree to maintain such landscaping and other facilities and to secure such obligation with a good and sufficient surety bond (other than personal surety), letter of credit, or other security acceptable to the Chief Engineer of the Department of Public Works and approved by the Corporation Counsel. NOW, THEREFORE, the parties hereto agree as follows: 1. OCEANSIDE agrees to construct the roadways in accordance with approved construction drawings. The establishment of landscaping shall be completed prior to the Department of Public Works' inspection of the roadway improvements for the acceptance of dedication of those improvements. 2. OCEANSIDE shall maintain or by recorded covenant require the association of lot owners within the Subdivision to maintain the landscaped areas and facilities within the roadways in accordance with approved construction drawings and subject to periodic inspection by the COUNTY's Department of Public Works. Said maintenance shall include, but shall not be limited to, grass cutting, pruning of trees and shrubbery, repair and/or backfilling of any and all rutted or scoured areas, and periodic grading and landscaping of the shoulders to ensure that there is adequate drainage in the event that there is an accumulation of soil runoff within the shoulder and swale areas and within any drainage facilities. 2 3. OCEANSIDE shall further maintain any drainage system required by the County, as shown on construction plans approved by the COUNTY, until this Agreement is terminated pursuant to paragraph 5 below, after which termination, the COUNTY shall be solely responsible for the maintenance thereof, or until such time that the parties may mutually agree to be acceptable. 4. In order to secure the performance of the above maintenance obligations after the COUNTY's acceptance of dedication of the roadways, OCEANSIDE shall tender to the COUNTY a surety bond or other security acceptable to the COUNTY, which shall be effective for a period of five (5) years after the acceptance of dedication of the roadways. The parties agree that the face value of the surety bond or other acceptable security shall be the approximate cost of converting the road a\ (including costs relating to planning, design, engineering, and construction) to standards under which the COUNTY would assume the obligation of total maintenance of all of the roadway improvements in the event that OCEANSIDE defaults in its maintenance obligations. The parties agree that the face value of the surety bond or other acceptable security shall be ONE MILLION SIX HUNDRED THIRTY-FIVE THOUSAND AND NO/100 DOLLARS ($1,635,000.00). No later than sixty(60) days prior to the end of the initial five-year period, pursuant to OCEANSIDE's written request to the COUNTY, the parties shall determine whether such security should be renewed to secure OCEANSIDE's ongoing maintenance obligations or whether there are other assurances available to secure Oceanside's long-term maintenance obligations. If it is determined that further security is required to secure the maintenance obligations, the face value of such security shall be based on a revised cost estimate which reflects current costs and shall be subject to the approval of the Department of Public Works. 3 5. In the event that OCEANSIDE elects to construct the roadways in accordance with dedicable standards meeting with the approval of the Department of Public Works, then, in such event, this Agreement shall be without further force and effect, and OCEANSIDE shall have no further obligation hereunder. 6. OCEANSIDE may, from time to time, provide the COUNTY with alternative forms of security which are acceptable to the COUNTY in securing OCEANSIDE's performance of its obligations under this Agreement. 7. OCEANSIDE shall have the right to sell, assign or transfer, in whole or in part, this Agreement, and all of its rights, duties and obligations hereunder, to any entity, subsidiary, or partner of OCEANSIDE at any time during the term of this Agreement upon written notice to the COUNTY. 8. OCEANSIDE shall indemnify, defend and hold the COUNTY harmless from and against any and all actions. suits, losses, costs, damages, liabilities or claims thereof, including attorneys' fees, arising out of or in connection with any action by OCEANSIDE, its agents, representatives, or employees within the scope of the design and construction of facilities and maintenance duties under this Agreement. 9. This Agreement may be amended or canceled, in whole or in part, by the mutual written consent of the parties to this Agreement, or their successors in interest. 4 1 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. 1250 OCEANSIDE PARTNERS, a Hawaii limited partnership By RED HILL 1250, INC., Its General Partner y RICHARD . HU PHRFYS Its VICF PRFSIDFNT "OCEANSIDE" COUNTY OF HAWAII: 6104.4Aal— STEPHK. YAMASHIRO Its Mayor APPROVED AS TO FORM AND LEGALITY: DEPARTMENT OF PUBLIC WORKS 2,07g -„ir Q•s-r'-DEPUTY CORPORATION CO EL COUNTY OF HAWAII �y Its06f.:1!"J . ineer Date �/��/Yy "COUNTY" 5 P a Bond #3SM 012 00 FIRST TERM PREMIUM FULLY EARNED BOND (Road Maintenance) KNOW ALL MEN BY THESE PRESENTS: That we, 1250 OCEANSIDE PARTNERS, a Hawaii limited partnership, of 78-6831 Alii Drive, Kailua-Kona, Suite K-15, Hawaii 96740, State of Hawaii, as principal, and AMERICAN MOTORISTS INSURANCE COMPANY, of Illinois , as surety, are held and firmly bound unto the County of Hawaii, a municipal corporation of the State of Hawaii, and its Department of Public Works, hereinafter called the "obligees," their successors and assigns in the full and just sum of ONE MILLION SIX HUNDRED THIRTY-FIVE THOUSAND AND NO/100 DOLLARS (51,635.000.00 ), for the payment of which to the said obligees, their successors and assigns, well and truly to be made, we do hereby bind ourselves and our respective heirs, executors and administrators, assigns and/or successors,jointly and severally, firmly by these presents. Signed, sealed, delivered, and dated this 1.6thday of September. 1999, at Honolulu State of Hawaii THE CONDITION OF THIS OBLIGATION IS SUCH THAT: WHEREAS, the said principal, is the developer of that certain development known as Holculi'a Phase 1, situated at Hanuaino 4, Hokukano 1 & 2. Kanaueue 1 & 2, Halekii, Keekee 1 & 2, Ilikahi, Kanakau 1 & 2, Kalukalu 1, 2 & 3, and Oriouli 1, North and South Kona, Island of Hawaii, County and State of Hawaii, identified by Tax Map Key No. 3` Division 5-1-004:003; SCANNED SEP 0 8 201k WHEREAS, the above-named principal and the obligees have entered into that certain Road Maintenance Agreement, dated the i6th day of September. 1999, to construct and maintain landscaped areas and other facilities within road rights-of-way in the event such rights-of-way and improvements therein are accepted for dedication to the County of Hawaii, and upon the principal's default thereupon, the obligees may convert all necessary road right-of-way improvements to dedicable standards and recover the costs thereof from the principal and surety, which said agreement is made part of this bond the same as though set forth herein; NOW,THEREFORE, if the above-bounden principal shall fully and faithfully do and perform according to the terms which are set forth in said Road Maintenance Agreement,this obligation shall be void; otherwise it shall be and remain in full force and effect. 1250 OCEANSIDE PARTNERS, AMERICAN MOTORISTS a Hawaii limited partnership INSURANCE COMPANY By RED HILL 1250, INC., Its eneral Partner By /"'' John N. Bustard Sur' Attorney-in-Fact BY R I CHARD L . HUMPHREYS Its VICE PRESJ.DENT Principal 2 IVEmPER. • Home Office: Long Grove, IL 60049 POWER OF ATTORNEY Know All Men By These Presents: That the Lumbermens Mutual Casualty Company,the American Motorists Insurance Company, and the American Manufacturers Mutual Insurance Company,corporations organized and existing under the laws of the State of Illinois, having their principal office in Long Grove, Illinois, (hereinafter collectively referred to as the"Company")do hereby appoint H.C. King, Jack S. Wilmoth,John N. Bustard, Paul R. Botts, Brad Wagenaar,Wesley I. Uemoto, Kathy Ann Sakuma, Maria Morales Minkel and Dorothy S.Albano of Honolulu, Hawaii (EACH)"' their true and lawful agent(s)and attorney(s)-in-fact,to make,execute,seal, and deliver during the period beginning with the date of issuance of this power and ending on the date specified below,unless sooner revoked for and on its behalf as surety,and as their act and deed: Any and all bonds and undertakings EXCEPTION: NO AUTHORITY is granted to make, execute,seal and deliver any bond or undertaking which guarantees the payment or collection of any promissory note,check,draft or letter of credit. This authority does not permit the same obligation to be split into two or more bonds in order to bring each such bond within the dollar limit of authority as set forth herein. This appointment may be revoked at any time by the Company. The execution of such bonds and undertakings in pursuance of these presents shall be as binding upon the said Company as fully and amply to all intents and purposes,as if the same had been duly executed and acknowledged by their regularly elected officers at their principal office in Long Grove, Illinois. This Puwer of Attorney is executed by authority of resolutions adopted by the Executive Committees of the Boards of Directors of the Company on February 23. 1988 at Chicago, Illinois, true and accurate copies of which are hereinafter set forth and are hereby certified to by the undersigned Secretary as being in full force and effect: "VOTED, That the Chairman of the Board, the President, or any Vice President, or their appointees designated in writing and filed with the Secretary,or the Secretary shall have the power and authority to appoint agents and attorneys-in-fact,and to authorize them to execute on behalf of the Company,and attach the seal of the Company thereto,bonds and undertakings, recognizances, contracts of indemnity and other writings,obligatory in the nature thereof,and any such officers of the Company may appoint agents for acceptance of process." This Power of Attorney is signed,sealed and certified by facsimile under and by authority of the following resolution adopted by the Executive Committee of the Boards of Directors of the Company at a meeting duly called and held on the 23rd day of February, 1988: "VOTED,That the signature of the Chairman of the Board,the President,any Vice President,or their appointees designated in writing and filed with the Secretary,and the signature of the Secretary,the seal of the Company,and certifications by the Secretary,may be affixed by facsimile on any power of attorney or bond executed pursuant to resolution adopted by the Executive Committee of the Board of Directors on February 23, 1988 and any such power so executed,sealed and certified with respect to any bond or undertaking to which it is attached,shall continue to be valid and binding upon the Company." In Testimony Whereof,the Company has caused this instrument to be signed and their corporate seals to be affixed by their authorized officers, this May 5, 1999. Attested and Certified: Lumbermens Mutual Casualty Company American Motorists Insurance Company American Manufacturers Mutual Insurance Company two Se- ce 131LV. S Cats L Y u nuns% -0 (�I4TN4 Tilp 11 AI f I oovatrro� 's . nt�` tr ��M' 4er are' Robert P. Hames, Secretary by J. S.Kemper, III, Exec.Vice President • STATE OF ILLINOIS SS COUNTY OF LAKE I, Irene Klewer,a Notary Public,do hereby certify that J. S.Kemper, III and Robert P.Hames personally known to me to be the same persons whose names are respectively as Exec.Vice President and Secretary of the Lumbermens Mutual Casualty Company,the American Motonsts Insurance Company,and the American Manufacturers Mutual Insurance Company, Corporations organized and existing under the laws of the State of Illinois.subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that they being thereunto duly authorized signed, sealed with the corporate seals and delivered the said instrument as the free and voluntary act of said corporations and as their own free and voluntary acts for the uses and purposes therein set forth. AAAAAAAAAAAAI t 'OFFICIAL SEAL" AA 410 Irene Klrwrr 44 Notary Pobi le,Statr otlIII noq 1111. rap Gram imp('Expires Jut 28.sort My commission expires 1-28-02 YV VYTT V V Yyryy Irene Klewer, Notary Public CERTIFICATION I,J.K.Conway,Corporate Secretary of the Lumbermens Mutual Casualty'Company, the American Motorists Insurance Company, and the American Manufacturers Mutual Insurance Company,do hereby certify that the attached Power of Attorney dated May 5, 1999 on behalf of the person(s)as listed above is a true and correct copy and that the same has been in full force and effect since the date thereof and is in full force and effect on the date of this certificate;and I do further certifythat the said J.S. Kemper,III and Robert P.Hames,who executed the Power of Attorney as Executive Vice President and Secretary respectively were on the date of the execution of the attached Power of Attorney the duly elected Executive Vice President and Secretary of the Lumbermens Mutual Casualty Company, the American Motorists Insurance Company,and the American Manufacturers Mutual Insurance Company. IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seal of the Lumbermens Mutual Casualty Company, the American Motorists Insurance Company,and the American Manufacturers Mutual Insurance Company on this September 16 1999 • �,U/t ♦ l win T. JItors Comemsnot )i Ap t{AS '^e ae` �+r aN'` J. K.Conway,Corporate Secretary This Power of Attorney limits the acts of those named therein to the bonds and undertakings specifically named therein and they have no authority to bind the Company except in the manner and to the extent herein stated. • FK 0362 6-96 Power of Attorney-Term Printed in U.S.A State of Hawaii - ) . f-6_.-. , ) ss City and County of Honolulu ) On this 14,15 day of` Sekn ne- , 19 9 9 , before me personally appeared Q1c}' - d L 44....._. hre,„/ 5 , la member of the co-partnership of I—)6.0C coon j o n eri P i --\,l 1 IDBD r,c , to me known and known to me to be the person who is described in and who executed the foregoing instrument, and acknowledged to me that he executed the same as and for the act and deed of the said co-partnership. 00111111111111 ae....F.,..,..„ (----\ 1(t_i -' S c:,,,,,(). NE A�/�t j L( [' `�4_� "400: iti: Notary Public, State of Hawaii �r My commission expires. t:-\.p .\ rc cz� State of Hawaii ) ) ss City and County of Honolulu ) On this 16th day of September, 1999, before me personally appeared John N. Bustard, to me personally known, who, being by me duly sworn, did say that he is the attorney-in-fact of American Motorists Insurance Company, duly appointed under a power of attorney which is now in full force and effect; and that said instrument was executed in the name and behalf of said corporation by said John N. Bustard as its attorney-in-fact, and he acknowledged said instrument to be the free act and deed of said corporation. &AN.Vn6v athy Ad n Sakuma I.s. Notary Public, State of Hawaii My commission expires: 2/5/2001 a ILKORDED AS rouowS s;ATE Of HAWAII • r.-_,[ �ti_ C3 VEYANCM C Z GFG4124 .�� dao. 6? LAND COURT SYSTEM REGULAR SYSTEM Return by Mail [] Pickup © To: CARLSMITH BALL 1001 Bishop Street, Suite 2200 Honolulu, Hawaii 96813 Attention: Eric A. James, Esq. Telephone: 523-2500 TITLE OF DOCUMENT: DECLARATION OF COVENANTS, CONDITIONS,AND RESTRICTIONS FOR HOKULI'A PARTIES TO DOCUMENT: DECLARANT: 1250 OCEANSIDE PARTNERS, a Hawaii limited partnership Keauhou Shopping Center Suite K-15 78-6831 Ali'i Drive Kailua-Kona,HI 96740 TAX MAP KEY(S): Hawaii 8-1-004-003 (Por.) (This document consists of 119 pages.) 1345592.1.051730-10 Exhibit 3 23.1 1. Roadways. Roadways and related improvements within Hokuli'a (the "Roadways") will remain as Common Area which the Association shall own and be responsible for unless and until the Roadways are dedicated to Hawaii County, and Hawaii County accepts such dedication. In order for Hawaii County to accept dedication of the Roadways, the Roadways must be in a condition that meets the standards of Hawaii County for such dedications. The Association shall be liable for the Roadways, and shall indemnify and hold Hawaii County harmless from any and all claims and actions arising from, or out of, the Roadways, so long as the Roadways remain Common Area. This Section shall not be interpreted to require the Association to dedicate the Roadways to Hawaii County, nor shall it be interpreted to require either the Association or Declarant to construct and maintain the Roadways in a condition that meets the standards of Hawaii County for such dedications. 23.12. Wells and Irrigation Systems. No Owner or Member may construct, drill, install, or maintain any sprinkler or irrigation systems or wells of any type which draw upon water from lakes, creeks, streams, rivers, ponds, wetlands, canals, or other ground or surface waters within Hokuli'a, except that Declarant, the Association, and the Corporation shall have the right to draw water from such sources. 23.13. Indemnity for the County of Hawaii. Special Management Area Use Permit No. 356 issued by the County of Hawaii (the "Permit"), applies to a portion of the property within Hokuli'a. As a condition of the approval of the Permit Declarant shall indemnify and hold the County of Hawaii harmless from and against any loss, liability, claim or demand for the property damage, personal injury or death arising out of any act or omission of Declarant, its successors or assigns, officers, employees, contractors and agents under the Permit or relating to or connected with the approval of the Permit. Article XXIV Amendment of Declaration 24.1. By Declarant. In addition to specific amendment rights granted elsewhere in this Declaration, until terndliation of the Class "B" Control Perin , Declarant may, 1111lesr otherwise prohibited by Hawaii law, unilaterally amend this Declaration for any purpose. Thereafter, so long as Declarant owns any property described in Exhibit "A" or "B," Declarant may unilaterally amend this Declaration if such amendment is necessary (a) to bring any provision into compliance with any applicable governmental statute, rule, regulation, or judicial determination; (b) to enable any reputable title insurance company to issue title insurance coverage on the Lots; (c) to enable any 73 Of Counsel: DAMON KEY LEONG KUPCHAK HASTERT Attorneys at Law Electronically Filed A Law Corporation THIRD CIRCUIT 3CCV-23-0000123 KENNETH R. KUPCHAK 1085-0 31-MAR-2023 TOREN K. YAMAMOTO 11520-0 01:33 PM 1003 Bishop Street, Suite 1600 Dkt. 1 CMPS Honolulu, Hawaii 96813 www.hawaiilawyer.corn Telephone: (808) 531-8031 Facsimile: (808) 533-2242 Attorneys for Plaintiff C & J COUPE FAMILY LIMITED PARTNERSHIP IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII C & J COUPE FAMILY LIMITED ) CIVIL NO. PARTNERSHIP, ) ) COMPLAINT FOR DECLARATORY Plaintiff, ) AND INJUNCTIVE RELIEF; ) APPENDICES "A"— "B"; SUMMONS vs. ) ) COUNTY OF HAWAII; COUNTY OF ) HAWAII, PLANNING DEPARTMENT; ) ZENDO KERN, IN HIS OFFICIAL ) CAPACITY AS DIRECTOR OF THE ) COUNTY OF HAWAII, PLANNING ) DEPARTMENT; 1250 OCEANSIDE LLC; ) JOHN DOES 1-10; JANE DOES 1-10; DOE ) CORPORATIONS 1-10; DOE ) PARTNERSHIPS 1-10; and DOE ENTITIES) 1-10, ) ) Defendants. ) ) COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF COMES NOW Plaintiff C & J FAMILY PARTNERSHIP ("Plaintiff'), and for claims against Defendants COUNTY OF HAWAII; COUNTY OF HAWAII, PLANNING DEPARTMENT; ZENDO KERN, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE 91Cq I do hereby certify that the foregoing is a full,true and correct copy of the official court record of the Courts of the State of Hawai'i. Dated at:Hilo,Hawaii 31-MAR-2023,/sl Cheryl Salmo,Clerk of the Thir' ^uit,State of Hawai'i $ p�/ e Exhibit 4 . or „ COUNTY OF HAWAII, PLANNING DEPARTMENT (collectively "County" or "County Defendants"); 1250 OCEANSIDE LLC ("Oceanside"); JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; and DOE ENTITIES 1-10 alleges and avers as follows: INTRODUCTION L Oceanside Breaches Promise to Create and Dedicate Three Standard Public Road Segments. 1. Decades ago Oceanside' promised the people of the Big Island, among other things, to design, construct and dedicate to County three new public road segments — all to the express requirements of County standards. 2. Not only has Oceanside failed to do so, but they and County appear to have actively attempted to circumvent and/or ignore these obligations which are specifically required by at least two zoning ordinances and a development agreement, all of which, by law, were adopted by the County Council and signed by the Mayor. 3. Specifically, in 1996, Oceanside received two rezoning's for 711.2 acres of land (more or less)just South of Keauhou (the "Hokulia Lands"), in the form of Ordinance No. 96-8 and Ordinance 96-7 (signed into law by the Mayor on January 15, 1996). The rezoning of Hokulia Lands, granted by Ordinance No. 96-8 and Ordinance 96-7, made it possible for Oceanside to begin developing a high-end luxury golf-course and ocean viewing residential development which would be situated on said rezoned land ("Hokulia"). 4. Ordinance No. 96-8 and Ordinance 96-7 were later incorporated by reference into a development agreement entered into between Oceanside and County Defendant, recorded in the State of Hawaii Bureau of Conveyances on April 30, 1998 ("Development Agreement"). Oceanside's predecessor in interest 1250 Oceanside Partners, a Hawaii limited partnership, dba Oceanside 1250, had been responsible for actions prior to 2008. Oceanside as we now know it picked up all responsibilities and requirements under the Development Agreement. 2 710088 5. At issue here, Ordinances No. 96-8 and 96-7 required Oceanside, at its sole expense, to design and build, to the dedicable County standards specified under Chapter 23 of the Hawaii County Code, three roadways as located on Exhibit "B" to Ordinance 96-8, attached hereto and incorporated herein, as Appendix "A": a. a North-South Connector Road(the "Connector Road"), b. an extension of the Halekii Street from the end of the then public portion thereof to the Mauka side of Mamalahoa By-Pass ("Mauka Halekii Extension"); and c. a continuation of Halekii Street Makai of the Mamalahoa By-Pass ("Makai Halekii Extension"). 6. All three of these roadways (collectively "Required Public Roads") are expressly required, under the Development Agreement and Ordinances No. 96-8 and 96-7, to be dedicated to County. 7. In order to accommodate for the impact of Hokulia and its anticipated influence on the population of Kona, County required the dedication of Required Public Roads as important public infrastructure; and, Oceanside, anticipating a significant development timeframe and a lengthy absorption period for sale of the luxury residences to be developed on Hokulia Lands, sought to freeze the zoning obtained in Ordinance 96-8 and 96-7, to ensure their would-be purchasers that the zoning would remain intact. 8. State law (see Haw. Rev. Stat. § 46-121) offers a legal tool which can toll a county's rezoning hand, often referred to as a development agreement. In order to justify the staying of government action under a development agreement, a county is to receive material consideration often including developers creating public infrastructure which inter alia, might help to defray the burden imposed on the county to ameliorate changes in the community influenced by the contemplated development. 3 710088 9. Oceanside and County entered into and recorded a Development Agreement on April 30, 1998, which incorporated by reference the County of Hawaii Ordinance No. 96-8 and 96-7 (hereinafter the "Incorporated Ordinances"). Under the Development Agreement, the Required Public Roads are among the specific consideration promised by Oceanside to justify County's agreement to freeze the then existing land use controls on Hokulia Land. Such roadways were to be built to County standards at Oceanside's sole expense and dedicated as public infrastructure to County. 10. Now, 25 years later, while County has made no efforts to unilaterally change or undo the zoning freeze under the Development Agreement (i.e. keeping the zoning for the development untouched), it has come to Plaintiffs attention that County and Oceanside have not complied with a number of the key terms of the bargain, causing a material failure of the considerations of the Development Agreement and Incorporated Ordinances. 11. Despite the requirements in the Development Agreement and Incorporated Ordinances to have the Required Public Roads built for dedication to the County, the roads have not been built to dedicable County standards, specifically, those prescribed in Section 23-86. 12. The dedication of Required Public Roads has also yet to be effectuated, despite the Development Agreement's impending end date. Additionally, Oceanside has erected a guard facility on the Makai Halekii Extension (the "Guard Facility") in attempts to privatize the community and, for too long, deprive the public free, unfettered access to these public roads. 13. Thus, not only has Oceanside (while avoiding incurring millions of dollars in construction costs) deprived the public of the safety inherent in County's road building and dedication standards, but they have also unlawfully, and in contravention of the express language of Development Agreement and Incorporated Ordinances, deprived the community public access altogether. 4 710088 14. Defendant Oceanside, however, continues to benefit from marketing and sales that tout Hokulia as a private gated community, in direct contradiction of the intent of the Development Agreement and Incorporated Ordinances. See Hokulia Advertisement, attached hereto as Appendix B and made a part hereof. IL Oceanside and County's Unlawful Attempt to Amend the Development Agreement and Incorporated Ordinances. 15. Development agreements and ordinances can be amended in a number of legal ways, listed out in the Hawaii Revised Statutes, county ordinances, and development agreements themselves. 16. Yet, at least twice over, Oceanside (misguidedly or intentionally) and County (apparently casting a blind eye) have sought to circumvent the timely design and build, to standards, of the Required Public Roads within Hokulia as required under the Development Agreement and Incorporated Ordinances. 17. First, Oceanside and County attempted to sub-silentio amend the requirements of the Development Agreement and Incorporated Ordinances by way of an improper, inferior, and illegal variance. Said variance was procedurally and substantively improper, yet it was granted by County in an unlawful attempt to afford the Required Public Roads amnesty from the County code's dedication standards. A variance is not a valid tool to amend a development agreement or ordinances in the way in which it was attempted here, even if it otherwise complied with the requirements for obtaining a variance, which it did not. 18. Second, the County, pursuant to a resolution, accepted the Mauka Halekii Extension in a substandard condition to the County Code. The acceptance of a substandard dedication was on its face improper and illegal, but also, in effect, moved to amend the Development Agreement and Incorporated Ordinances in a similar fashion to the above 5 710088 mentioned variance. Amendment of the Development Agreement, pursuant to this resolution, was procedurally and substantively improper, and not only straps the County's citizens with tremendous liability via maintenance and improvement costs (a burden that was supposed to be shouldered by Oceanside), but also creates a potentially dangerous condition for said citizens. 19. These efforts to circumvent and failures to enforce (each ill-conceived, ultra vires, and against the strict dictates of the law) the Incorporated Ordinances and Development Agreement, including the use of a variance to circumvent County dedicable standards and a resolution to accept substandard dedications, cannot be left unaddressed. 20. Moreover, attempts to amend (i.e. the variance and resolution) by deficient legal means were unconstitutionally processed by stealth, without proper notice to Plaintiff, a neighboring land owner and the public, thereby depriving Plaintiff and public of due process rights. 21. Residents of the Big Island, such as the Plaintiff, are entitled to the consideration promised for freezing their land use powers. They should not be asked to shoulder the burden of having to design, build, and acquire these promised public roads. 22. County, on behalf of its residents, has fairly and freely bargained for Oceanside to, at its expense, design, build and dedicate these public roads. 23. Oceanside, after presumably receiving significant compensation from selling residential lots within the development as a private gated community, cannot be relieved of its obligation and certainly should not be allowed to shift the burden to the tax paying public. Even more wanting for redress is the fact that Oceanside has tried to relieve itself of these crucial obligations through a pattern of bad acts stemming back almost from the inception of the Development Agreement. 6 710088 24. This complaint requests the Court declare that Defendant Oceanside remains obligated to provide these public improvements and requires the establishment of a schedule for prompt compliance, and Defendant County be required to enforce strict compliance of the Development Agreement and Incorporated Ordinances. NATURE OF THE ACTION 25. Plaintiff is C&J Coupe Family LTD Partnership, landowner of (with a material property interest in) TMK 3-8-1-7:045, the property directly south to and abutting the Hokulia Lands. Plaintiff as neighboring landowner has an interest in the enforcement of the Development Agreement and Incorporated Ordinances. 26. This case stems from two major issues: (1) a breach of the public's trust due to Oceanside's failure to comply with, and County's failure to enforce, the express requirements of the Development Agreement and the Incorporated Ordinances, and (2) Oceanside and County's improper, unconstitutional, and illegal sub-silentio attempts to amend the Development Agreement and Incorporated Ordinances via a variance and substandard dedication. 27. Development agreements are meant to be mutually beneficial situations in which a county (and, by extension, its citizens) as well as the developer benefit. The developer receives the benefit of a freeze on existing land development regulations and plans for a fixed period of years and, in exchange, a county receives agreed to public infrastructure and facilities. 28. In this case, the Development Agreement's Incorporated Ordinances contemplates the developer constructing Hokulia, a residential community in Kealakekua, Hawaii. As such, County agreed not to unilaterally change the land use contemplated by the Incorporated Ordinances for a set period of time, in exchange for, among other things, Oceanside providing benefits to the community through, inter alia, the public dedication of county standard roads and unfettered public access upon those Required Public Roads. 7 710088 29. Specifically at issue here, the Development Agreement and Incorporated Ordinances require the timely,public dedication of Required Public Roads within Hokulia. 30. Each of the three Required Public Roads were to be timely dedicated to County as important public infrastructure under the express terms of the Development Agreement and Incorporated Ordinances, and, as such, needed to be built in strict compliance to County dedication standards as dictated under Chapter 23 of the Hawaii County Code. However, rather than enforce these conditions, County has ignored their obligations without enforcement of any kind. 31. Oceanside has breached the Development Agreement and its Incorporated Ordinances by (1) building the Required Public Roads substandard to the requirements of the Code, (2) failing to timely, publically dedicate the Required Public Roads to County dedicable standards, and (3) erecting Guard Facility on the Required Public Roads in efforts to prey upon the unsuspecting public and market their community as a private gated community with security personnel on duty 24/7. 32. As such, Oceanside has been able to unlawfully profit by reaping the benefit of the Development Agreement without having to bear materials and costs, in the millions of dollars, required to comply with these most important burdens. 33. The second major issue here is the fact that County and Oceanside have twice over (as far as we know) attempted to sub-silentio unlawfully amend the Development Agreement and Incorporated Ordinances through improper, unconstitutional, and illegal means, via a variance and pursuant to a sham dedication. In both situations, Plaintiff, as a neighboring landowner, was not provided with the requisite notice of Oceanside and County's true efforts to circumvent the legal process. 8 710088 34. Oceanside sought a variance to the above mentioned requirements in contravention of the law. However, as neighboring property owner to Oceanside, Plaintiff was/is directly affected by said variance. Recognizing the effect of variances on neighboring property owners, the Hawaii County Code expressly requires variance applicants to provide neighboring property owners of their attempts to circumvent County Code, whether lawfully or unlawfully requested. Plaintiff was provided no notice of the variance whatsoever. 35. Following the variance (which required public notice) County and Oceanside once again attempted to remove the County's dedication standards from the terms of the deal. Specifically, Oceanside dedicated the Mauka Halekii Extension to the County, and the County accepted said dedication pursuant to a County resolution. Dubiously, the Mauka Halekii Extension was not built to dedicable standard as required by the Code as well as the Development Agreement and Incorporated Ordinances. 36. This was not a proper dedication and was, in actually, a thinly vailed attempt to once again amend the Development Agreement and Incorporated Ordinances, this time without any notice to the public. Because this "dedication", amended the Development Agreement and Incorporated Ordinances, proper notice should have been provided to the Plaintiff and the public at large. 37. This display of lethargy and evasion of legal requirements cannot continue. The Development Agreement and Incorporated Ordinances were enacted in order to provide essential benefits to the community, including the Plaintiff. Oceanside knew what was expected, required, and agreed to, and, therefore, must be held to the negotiated terms, and the County, in the interest of the Plaintiff and the community at large, must be commanded to enforce the terms. 38. After all, this project was meant to be constructed to create a residential community as well as provide very important public infrastructure to the residents of the 9 710088 Kealakekua area. Oceanside and County should not be able to side step their responsibilities, nor should they be allowed to profit from the bad acts that are on display here. THE PARTIES 39. At all times relevant to this complaint, Plaintiff C & J Coupe Family Partnership ("Plaintiff') is and was the owner of interests in the following parcels with TMK No. (3) 8-1- 007-045 & (3) 8-1-007-057 located in Kealakekua, Hawaii, which is adjacent to the master planned residential development known as Hokulia. 40. Defendant County of Hawaii is a municipal corporation, and is legally responsible for the acts and omission of its departments, officials, and boards and the enforcement of its laws. 41. Defendant Planning Department of the County of Hawaii is created pursuant to Chapter 7 of the Hawaii County Charter is the agency charged with, among other things, enforcing zoning regulations on Hawaii Island pursuant to the Hawaii County Code, Chapter 25. 42. Defendant Zendo Kern is the Director of the Planning Department of the County of Hawaii, and, in performing his duties is and was, at all relevant times, acting under color of law. The Director is being sued only in his official capacity. 43. Defendant 1250 Oceanside LLC is a Delaware limited liability company licensed to do business in the State of Hawaii and is the developer of the residential community known as Hokulia(the "Project") located on the Kona coast in Kealakekua, Hawaii. 44. JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; and DOE ENTITITES 1-10 (collectively "Doe Defendants") are persons, governments, entities, agents or estates which are in some manner presently unknown to Plaintiffs and who are liable for the claims for relief set forth in this Complaint. Plaintiff is 10 710088 presently unaware of the true names and capacities of the Doe Defendants but will amend the Complaint as soon as they are ascertained. JURISDICTION AND VENUE 45. There is an actual controversy between and among the parties and this Court has jurisdiction to make binding adjudications of right pursuant to Haw. Rev. Stat. § 632-1 and Rule 57 of the Hawaii Rules of Civil Procedure. 46. Venue is proper pursuant to Haw. Rev. Stat. § 603-36(5) because a substantial part of the events or omissions giving rise to Plaintiff's claims occurred in this judicial district, and because the Project which is the subject of this action is located in this judicial district. STATEMENT OF THE FACTS L THE ORDINANCES. 47. On January 15, 1996, Ordinance No. 96-8 and Ordinance 96-7 were signed into law by the Mayor of Hawaii Island. Said ordinances rezoned Oceanside's land, making it possible to begin developing a high-end luxury golf-course and ocean viewing residential development. Ordinance No. 96-8 and 96-7 specifically conditioned their rezoning grant on set requirements. 48. Condition M(4) of Ordinance 96-7 requires Oceanside to "construct the extension of Halekii Street through the subject property . . . which phasing of improvements shall be approved by the Department of Public Works." Condition M(5) of Ordinance 96-7 requires Oceanside to "provide roadway stub-outs, generally shown in Exhibit "B", to provide future connections between the subject property and the adjacent properties to the north and south; provided that such stub-outs shall be constructed in accordance with the construction phasing as approved by the Department of Public Works." 11 710088 49. Condition L(4) of Ordinance 96-8 (which amended certain provision of Ordinance 96-7 but importantly kept those at issue here largely unamended) reaffirmed the requirement that Oceanside "construct the extension of Halekii Street through the subject property[.]" Condition L(5) of Ordinance 96-8 also reiterates the requirement that Oceanside to "provide roadway stub- outs . . . to provide future connections between the subject property and the adjacent properties to the north and south[.]" these roadways were all to be constructed "[p]rior to the issuance of Final Subdivision Approval for any portion of the subject property." 50. Condition N of Ordinance 96-8 requires that "[8]11 roadway improvements stated in Condition L of this ordinance shall be dedicated to the County of Hawaii." Thus, since 1996, Ordinance 96-8 and 96-7 have required Oceanside to provide the County (1) the Mauka Halekii Extension, (2) the Makai Halekii Extension, and(3) Connector Road. II. THE DEVELOPMENT AGREEMENT. 51. The purpose of a development agreement, among other things, is to freeze existing land development regulations and plans for a fixed period of years in return for good and valuable consideration of, among other things, public infrastructure and facilities. See Haw. Rev. Stat. § 46-121; Hawaii County Code § 30-2; see also DAVID L. CALLIES, REGULATING PARADISE at 6 (2d ed. 2010). 52. On April 20, 1998, the County of Hawaii and 1250 Oceanside Partners (the predecessor in interest to Oceanside) entered into the Development Agreement, which was approved and consented to, pursuant to HRS § 46-121 et seq. and Hawaii County Code Chapter 30 and signed into law by the Mayor. Pursuant to the purpose listed above, this Development 2 Paragraph 46 of the Development Agreement provides: "The terms and conditions of this Agreement shall be binding upon,and the benefits of this Agreement shall inure to all successors in interest to the assigns of the parties hereto,and the covenants contained herein shall run with the land."Therefore, though entered into by Oceanside's predecessor in interest, the express terms of the Development Agreement and its Incorporated Ordinances continue to be binding upon Oceanside. 12 710088 Agreement (among other things) locked the rezoning granted under Ordinance 96-8 and 96-7 into place for a term of 30 years, in favor of Oceanside. 53. In exchange, the County was to receive a number of valuable considerations including the conditions of the Incorporated Ordinances, which were incorporated by reference in Section 2(d)(1) and 2(d)(2)respectively. 54. Recital M and N of the Development Agreement provides: M. Pursuant to Sec. 46-121, HRS, Hawaii County Code Chapter 30, and Hawaii County's Rule 1, relating to Development Agreements, the COUNTY and OCEANSIDE have entered into this Agreement. This Agreement will (i) provide for the parameters within which the obligations of OCEANSIDE for public and other improvements will be met; (ii) provide assurances to OCEANSIDE that the project will not be restricted or prohibited by the subsequent enactment or adoption of more restrictive Land Use Regulations, including but not limited to changes in zoning classifications or revocation of OCEANSIDE's Approvals, except when, with the agreement of OCEANSIDE, it becomes necessary to preserve the public health, safety and welfare; and (iii) provide appropriate assurances to OCEANSIDE that it may complete the development and construction of the Project in accordance with all Land Use Regulations and Approvals applicable to the Project on the date of the Agreement, subject to OCEANSIDE's adherence to and performance of all material terms and conditions of this Agreement. N. Use of this Agreement will reduce or eliminate the uncertainty in the Project planning and development approval process, which in turn, would encourage the efficient utilization of resources and minimize the economic cost to the public: allow for the orderly planning of public facilities and services, and otherwise achieve the purposes and objectives for which the Development Agreement Statute and the Development Agreement Code were enacted. This Agreement clarifies the Land Use Regulations and Approvals, which in turn provide for the overall design, construction and development of the Project and all on-site improvements and appurtenances associated therewith, in the manner specified in this Agreement, including, without limitation, the design, construction and development of projects to provide benefits to the region and the COUNTY such as the Bypass Highway and the Coastline Park as set forth herein. (Emphasis added.) 13 710088 III. DEDICATIONS UNDER HAWAII COUNTY CODE. 55. Hawaii County Code § 23-10 provides that the County "shall not . . . receive by dedication . . . any street in any subdivision . . . except in full compliance with the provisions of this chapter." The Incorporated Ordinances made clear that the Required Public Roads needed to be dedicated to the County. 56. In other words, Oceanside is required to construct the Required Public Roads, AND dedicate those roads to and for the benefit of the County and its citizens (including the Plaintiff). In order to properly dedicate these roads, they must be in full compliance with the requirements of the Hawaii County Code. 57. Upon information and belief, Oceanside has not constructed the Mauka Halekii Street Extension, the Makai Halekii Street Extension, or the Connector Road in accordance with the requirements of the Hawaii County Code.3 58. Furthermore, Oceanside has placed the Guard Facility at the entrance of Hokulia, directly on the Required Public Roadways. The effect of said Guard Facility is the creation of a private gated community and, to the detriment of the public, the privatization of the Makai portion of the Halekii Street Extension and Connector Road. 59. Given that the Development Agreement and Incorporated Ordinances expressly required the Required Public Roads within Hokulia to be dedicated to the County (and the public at large), Oceanside has clearly breached the Development Agreement and Incorporated Ordinances by erecting the Guard Facility which, in effect, has allowed Oceanside to create and market Hokulia as a private gated community. The Makai Halekii Street Extension and Connector Road both being covered under the variance verify the information and belief of their substandard build. Worse yet, Oceanside illegally attempted to dedicate the Mauka Halekii Extension and the County unlawfully accepted said illegal dedication through County of Hawaii Resolution No. 317-12,despite said road not being in compliance with Chapter 23 of the Code and contrary to the Development Agreement and Incorporated Ordinances. 14 710088 IV. NO LEGAL AMENDMENT TO DEVELOPMENT AGREEMENT OR INCORPORATED ORDINANCES HAS BEEN ISSUED. 60. Paragraph 27 of the Development Agreement provides: This Agreement may be amended or canceled in whole or in part by mutual consent of the parties to this Agreement, or their successors in interest, as further evidenced by County Council resolution, provided that if the County Council determines that the proposed amendment would substantially alter the original terms of this Agreement, a public hearing on the amendment shall be held by the County Council before it consents to the proposed amendment. This language echoes both Haw. Rev. Stat. §46-130 and Hawaii County Code Section 30- 9's requirements to amend development agreements. 61. The process required to amend a County of Hawaii ordinance is a steeper hurdle. Ordinances are the laws of a county or municipality, and typically only amendable through a subsequent ordinance. (See Revised Charter of the City & County of Honolulu Section 3-204 (stating "Ho ordinance shall be amended, revised or repealed by the council except by ordinance.")). 62. The County of Hawaii Charter lacks express language dictating the means to amend an ordinance. See generally County of Hawaii Charter (lacking similar language to the Revised Charter of the City & County of Honolulu Section 3-204). However, Section 2-2 of the County of Hawaii Charter states that "[a]ll powers of the county shall be carried into execution as provided by this charter or, if the charter makes no provision, by ordinance or resolution of the county council."Additionally, Section 3-8 of the Charter states that "[e]very legislative act of the council shall be by ordinance." 63. So, despite not expressly stating that an "ordinance shall not be amended, revised or repealed by the council except by ordinance", as the Charter of Honolulu does, the catchall provision of the County of Hawaii Charter creates a similar mechanism for amending ordinances. 15 710088 64. Neither the Development Agreement nor its Incorporated Ordinances have ever been lawfully amended, thus, Oceanside's obligations under both, specifically as to the design, build, and dedication of the Halekii Street Extension (both Mauka and Makai of the By-Pass Highway) and Connector Road, have never changed. 65. County and Oceanside are very much aware of the above detailed legal process of amending an ordinance, as they have previously amended the Incorporated Ordinance. On May 8, 2008, County enacted Ordinance 08-59 with the specific purpose of amending Ordinance 96- 8. 66. Ordinance 08-59 removed a requirement set in place by Ordinance 96-8 which called for a barricade of the Mauka Halekii Extension. In exchange for the removal of said condition, Oceanside was required to put in place a number of mitigation measures for the increase in traffic that the Mauka Halekii Extension would bring to the preexisting Halekii Street. County conducted a traffic study and held public hearings in order to determine the validity of said amendment. Following this legal ordinance amendment process, County Council and the Mayor signed Ordinance 08-59 into law. 67. However, despite being party to the proper amendment procedure back in 2008, County and Oceanside have since that time tried to circumvent the ordinance amendment requirements through a number of unpermitted and unlawful means (to be discussed in the following sections), misguidedly ignorant to, or maliciously ignoring, the clear and proper way to amend the Development Agreement and Incorporated Ordinances. V. THE VARIANCE 68. Sometime in or around 2010, Oceanside attempted to amend condition M-4 (Ordinance No. 96-7) and condition L-4 (Ordinance No. 96-8) by submitting Variance Application: VAR 10-027 (the "Variance"). Said application was an effort to circumvent 16 710088 dedication standards under the County Code prescribed under Sections 23-86 and 23-41 of the County Code. 69. Variance 10-027 was deficient for a number of reasons: (1) Oceanside failed to meet the specific criteria required for a variance under the County code, (2) the Variance unlawfully attempted to amend the Development Agreement and Incorporated Ordinances, and (3) Oceanside failed to provide Plaintiff with specific notice of the variance application. 70. Despite these deficiencies, County improperly and illegally issued the Variance on January 31, 2011. a. Conditions for Variance Were Not Met. 71. Section 23-15 of the Hawaii County Code states that all the following conditions must exist for a variance to be granted: i. There are special or unusual circumstances applying to the subject real property which exist either to a degree which deprives the owner or applicant of substantial property rights that would otherwise be available or to a degree which obviously interferes with the best use or manner of development of that property; and ii. There are no other reasonable alternatives that would resolve the difficulty; and iii. The variance will be consistent with the general purpose of the district, the intent and purpose of this chapter, and the County general plan and will not be materially detrimental to the public welfare or cause substantial, adverse impact to an area's character or to adjoining properties 72. These express requirements to grant a variance were not met here, inter alia, because the most reasonable alternative was for Oceanside to do as it promised and bear the burdens that they agreed to in the Development Agreement and Incorporated Ordinances and build the Required Public Roads to County dedicable standards. Passing the burden to the County, while Oceanside purely reaps the benefits, is not a reasonable alternative for a variance. 73. Further, it is well settled law that in order to show deprivation of property rights warranting a variance, an applicant must prove something more than financial burdens or 17 710088 economic hardships. Surfrider Found. v. Zoning Bd. of Appeals, 136 Haw. 95, 110 (2015). Oceanside pleaded these economic hardship grounds when applying for the Variance. In their variance application, Oceanside claims that due to the special and unusual circumstances of the property (the topography of the Hokulia Development) full compliance with the County Standards of Section 23-86 and Section 23-95 would "add considerable cost to [Oceanside]." This does not meet the requirement for deprivation justifying a variance. b. Variance is an Improper, Impermissible, and Illegal Means to Amend Development Agreement and Incorporated Ordinance. 74. In actuality, the Variance was a thinly veiled attempt to amend the Development Agreement and Incorporated Ordinances. A method of amendment that is improper, impermissible, and illegal. 75. Specifically, in granting Variance 10-027, Oceanside sought to circumvent the express language of the Development Agreement and Incorporated Ordinances, which requires Oceanside to dedicate the Required Public Roads to County dedicable standards, as important public infrastructure. 76. This very issue was highlighted in a Memorandum from Division Chief of the Engineering Division of the Department of Public Works, Ben Ishii, to Leithead Todd (County Planning Director at the time) ("Ishii Letter"), "the application does not acknowledge that Ordinance 96-8 Condition L and M required dedication of the connecting roads [(Required Public Roads)]. DPW object to granting a variance without specifying cross section details and distinguishing those streets. For example, Halekii street extension which is a collector street . . . shall be dedicated to the County as required by ordinance. Because of safety, liability and maintenance concerns, separate details should be provided for roads that do not require dedication to the County by ordinance and those that do require dedication. Additional conditions such as roadside landscape and drainage system maintenance requirements and streetlights along with a surety in case of default should be imposed for roads required to be dedicated to the County." 18 710088 77. The Ishii Letter highlighted the fact that conditions on ordinances and requirements under development agreements are amended via the rules listed above, and may not permissibly be alleviated through simple variance. 78. To reiterate, the way to properly and legally amend an ordinance is via subsequent ordinance, not through variance. A fact that Oceanside and County are very well aware of, as they amended the Incorporated Ordinances in 2008 through Ordinance 08-59 (pertaining to barricading the Mauka Halekii Extension). 79. Thus, not only had Oceanside failed to meet the elements required to grant a variance, but they have also attempted to circumvent the law by impermissibly, improperly, and illegally attempting to amend the Development Agreement and Incorporated Ordinances. c. Improper Procedure: Failure to Provide Notice to Neighboring Landowners. 80. In addition, the Variance was also procedurally deficient. 81. Any and all applications for variances under the Chapter 23 of the County Code, requires specific notice to be provided to neighboring landowners. 82. Section 23-17 of the Hawaii County Code sets forth the notice provision of the subdivision variance procedure, expressly stating that in order for a variance to be issued, "the applicant shall serve notice of the application on owners of interest in properties within three hundred feet of the perimeter boundary of the applicant's property and to owners of interests in other properties which the director may find to be directly affected by the variance sought." 83. Plaintiff (a neighboring landowner) was not, upon information and belief'', provided specific notice of Oceanside's application for Variance 10-027 as is required by the clear dictate of the law, let alone notice sufficiently disclosing the Variance's true impact. Plaintiff did not receive specific notice of the Variance application and the variance files provided by County(for Variance 10-027)do not include a certified mail receipt corroborating any such notice having been provided to Plaintiff. 19 710088 84. Oceanside's failure to provide notice of the Variance is made even more likely given their pattern of behavior when it comes to providing Plaintiff with notice of adverse (relative to Plaintiffs interest) attempts to amend the Development Agreement and Incorporated Ordinances. 85. Specifically, on January 23, 2020, Oceanside sent Planning Department Director, Michael Yee, a request to amend Condition M of Ordinance No. 96-8 under which Oceanside would no longer be obligated to dedicate the Required Public Roads. Such request required Oceanside to also provide a list of neighboring property owners who would be affected by the requested amendment. 86. Merits of the 2020 request to amend Ordinance No. 96-8 (which froze zoning on the land for over two decades) aside, Oceanside "conveniently" failed to include Plaintiff on the required list of neighboring properties. 87. As highlighted by Michael Yee's response to Oceanside, dated February 11, 2020 (the "Yee Letter"), this omission was due to Oceanside only seeking to notify property owners located 1,000 feet from the road lots rather than 1,000 feet from all property boundaries. This duplicity allowed Oceanside to avoid providing Plaintiffs lot (TMK: (3) 7-9-012:004) notification of any attempts to amend. 88. Despite the Yee Letter informing Oceanside to include Plaintiff on any notice lists, Plaintiff only recently discovered the attempted 2020 amendment through independent investigation. That is to say, Oceanside once again refused to freely (as required by law) provide specific notice of an attempt to adversely affect Plaintiffs property interest. 89. The blatant evasion displayed in Oceanside's failure to provide notice for the attempted 2020 amendment further corroborates the premise that the Variance similarly lacked the requisite notice. 20 710088 90. Thus, not only did the Variance lack substantive merit, it was also procedurally deficient as well. In almost all perceivable aspects, the Variance was improper, impermissible, and illegal. VI. UNLAWFUL GRANT OF MAUKA HALEKII EXTENSION WITHOUT ADHERENCE TO DEDICATION STANDARDS. 91. An illegal variance was not the only act of subterfuge at play here. Oceanside also attempted to dedicate substandard roadways to County in an attempt to sidestep its obligations under the Development Agreement and Incorporated Ordinances, and the County, for its part, accepted. 92. The County attempted to receive the Mauka Halekii Extension from Oceanside in the form of three roadway lots, more particularly described as Tax Map Numbers (3) 8-1- 035:004, (3) 8-1-035:001, and (3) 8-1-036-001 (portions of) (i.e. lots 10-A, 1B and 3-A2, which respectively correspond to the TMK numbers). The physical road upon the Mauka Halekii Extension sits on top of these three roadway lots. 93. Oceanside unlawfully and impermissibly "dedicated" roadway lots as the Mauka Halekii Extension and, pursuant to resolution No. 317-12 the County accepted said "dedication" on November 9, 2012 (the "Resolution"). 94. Dedication of the Mauka Halekii Extension was improper for two reasons: (1) Mauka Halekii Extension was not built to County standards required for dedication, thereby breaching the Development Agreement and Incorporated Ordinances, and (2) the actual intent of this resolution/dedication was to unjustly amend the Development Agreement and Incorporated Ordinances, either of which require notice to Plaintiff and the Public. a. Attempted Dedication is Material Breach of the Development Agreement and Incorporated Ordinances. 21 710088 95. First, the Resolution makes a number of representations that are patently untrue about the condition of the Mauka Halekii Extension. The Mauka Halekii Extension was accepted under the express condition that said road was "in full compliance with the provision of Chapter 23 of the Hawaii County Code." 96. However, the Mauka Halekii Extension was not built to dedicable standards, failing to be in full compliance with Chapter 23 of the Hawaii County Code in a number of ways. 97. Specifically, Hawaii County Code § 23-86(b) requires that dedicable streets "shall be constructed in accordance with the specifications in this section and those on file with the department of public works." In addition, dedicable streets "shall be installed under the supervision of the director of public works and to permanent grades approved by him." 98. Upon information and belief, the Mauka Halekii Extension (1) was not "constructed in accordance with the specifications in [§ 23-86]," (2) was not "constructed in accordance" with the specifications "on file with the department of public works," and (3) was not "installed under the supervision of the director of public works[.]" 99. This is confirmed by the Planning Director Leithead Todd in the issuance of Variance 10-027 on January 31, 2011 where she states that: "It should be noted that the extension of Halekii Street has been completed without full right-of-way improvements per construction plans approved by the Department of Public Works." 100. The Mauka Halekii Extension is displayed below: 22 710088 w � _ t\j\� 101. This is in stark contrast to the already existing Halekii Street, which lies east of the Mauka Halekii Extension (the "Old Halekii Street"). The Old Halekii Street provides a greater width of pavement and multiple improvements. To illustrate the differences, the Old Halekii Street has 36-feet of paved surface, curbs, gutters, sidewalks, and streetlights. In contrast, the Mauka Halekii Extension shown above is a 24-foot wide paved surface, but devoid of curbs, gutters, sidewalks, and streetlights. It also has no graded and paved shoulders and swales as is standard for dedicable streets. Displayed in the photographs below is a west facing view from the vantage point of the Old Halekii Street toward the Mauka Halekii Extension: .?a:s` � <ierv" , r 4 0y�,\\y�'�' • 23 710088 } r •4";.'44/14 r ;:"4' a 102. To further highlight the differences between the Old Halekii Street and the Mauka Halekii Extension, below is a photograph taken of the Old Halekii Street facing East: ax 7 � k 1 wEp a Vis. . , h ° I ! *� 1t b 103. The drastic decrease in infrastructure is not only impermissible and improper for dedication, but also may cause confusion and create a hazard for drivers and pedestrians, thereby exposing citizens to unsafe conditions. 24 710088 104. Further, and perhaps more damning, upon information and belief, the Mauka Halekii Extension was not constructed to the Department of Public Work's standard and based upon detailed plans and specifications approved by the Chief Engineer of the Department of Public Works, as had been represented and as is expressly required under County Code, nor did the director of public works supervise the construction of the Mauka Halekii Extension to ensure that it meets County standards. Both of which are requirements for dedicable streets under Section 23-86 of the County Code. 105. As stated above, the road that is the Mauka Halekii Extension was built in the early 2000's, before Oceanside in its current iteration, far before this current County administration, before Ordinance 08-59 was implemented to allow the opening of the road to the public, and before the importance of Mauka Halekii Extension as a secondary arterial road was even considered. 106. Importantly, the Variance sought to "permit[] the retention of existing" roadways within Hokulia which were not built to County dedicable standard. This included, but was not limited to, the Mauka Halekii Extension. The Variance, already lacking in merit as indicated above, also once again highlights the fact that the Mauka Halekii Extension was not legally dedicated to the County. 107. The fact that an after-the-fact variance was requested for the Mauka Halekii Extension's substandard condition all but proves that the roadway was neither "constructed in accordance with the specifications in [Section 23-86] and those on file with the department of public works" nor was it "installed under the supervision of the director of public works and to permanent grades approved by him." After all, if the Mauka Halekii Extension had been constructed and supervised to dedicable standard, it would not have needed a variance in order to be"dedicable". 25 710088 108. It is therefore unlikely, if not impossible, for the Department of Public Works to have provided specifications before construction as well as supervision during construction of the Mauka Halekii Extension in the form in which it was "dedicated" (as a secondary arterial). 109. Because it failed to meet the dedicable standards of the County, the dedication of the Mauka Halekii Extension was, for all intents and purposes, a sham. 110. Despite the warranties of the County made in the Resolution, the County illegally attempted to accept the Mauka Halekii Extension far below the acceptable standards, in violation of the Development Agreement and Incorporated Ordinances. 111. By attempting to accept the substandard dedication of the Mauka Halekii Extension, County has publicly violated its own standards set forth in the Hawaii County Code § 23-10, bald-facedly misrepresented adherence to the Development Agreement and Incorporated Ordinances, and dubiously attempted to deceive the public at large. 112. Further, this substandard attempt at dedication has placed the onus of maintaining the currently deficient Mauka Halekii Extension, as well as liability stemming from the road, upon the County and, by extension, its citizens. Thus, not only has the County's subterfuge betrayed the public trust, but it has also strapped its citizens with millions of dollars in construction costs, liability and long term maintenance. 113. Thus, the Mauka Halekii Extension needs to be closed and rebuilt to the express requirements of Chapter 23 of the Hawaii County Code. This means an 80-foot width and 24-feet of pavement, sufficient base course, graded and paved shoulders and swales, streetlights, and, perhaps most importantly, thorough and in-depth input from the Department of Public Works in the form of specifications before, and supervision during, construction. b. Attempted Dedication is, in Actuality, a Faulty Attempt to Amend the Development Agreement and Incorporated Ordinances, Which Required Notice to Plaintiff. 26 710088 114. What acceptance of the Mauka Halekii Extension truly represents is another attempt (albeit less public and more dubious) to, like the variance, circumvent the legal requirements to amend the Development Agreement and Incorporated Ordinances. 115. A resolution is not a valid way of amending a development agreement or a county ordinance. 116. In addition, as has been stated before, amendments to a Development Agreement (in this substantial way) and Incorporated Ordinances (in any way)requires notice to be provided to the public. Perhaps in attempts to stealthily avoid such notice, County and Oceanside simply ignored the requirements of the County Code and signed the resolution accepting the dedication in this substandard form, no questions asked. 117. Whatever the motive or justification the County had for issuing the Resolution, it failed to amend either the Development Agreement or the Incorporated Ordinances. 118. Thus, even if County could accept the dedication of these substandard "roadway lots" being offered by Oceanside (which they cannot, as detailed above), this acceptance of "roadway lots"would not relieve Oceanside of its obligations under the Development Agreement and Incorporated Ordinances to design and build the Mauka Halekii Extension (and all Required Public Roadways for that matter) on top of said "roadway lots" to the express dedicable standards prescribed under the County Code, and at Oceanside's sole cost and expense. 119. The Resolution was, in actuality an unlawful and impermissible attempt to amend the Development Agreement and Incorporated Ordinances. Because no lawful amendment to the Development Agreement or Incorporated Ordinances has been effectuated in the Resolution, the obligations under those instruments to dedicate the Mauka Halekii Extension (to County standards)has not been satisfied. 27 710088 VII. UNLAWFUL DENIAL OF PUBLIC INFRASTRUCTURE. 120. Finally, at some point in time, Oceanside constructed the Guard Facility just west of the point at which the Mamalahoa By-pass Highway meets the Makai Halekii Extension, effectively creating the "private" community known and marketed as Hokulia. 121. Sometime in or around 2011, Hokulia installed the first iteration of the Guard Facility in efforts to impede public access to the Required Public Roads. The aerial photograph below depicts the first location of the Guard Facility in 2011. • • r ' 122. Over the years, this Guard Facility has continuously increased its fortification. Changing locations within Hokulia in order to increasingly bolster efforts for the privatization of said "private" community. The 2013 image below shows the first major shift in the Guard Facility's location along the public road entrance to Hokulia. This position allowed the simple, rudimentary Guard Facility to have a better strategic position for controlling egress and ingress into Hokulia: 28 710088 .4.......... ....�,. �, Iffy , � �,L;.;',,.,.., ,. •�- �: e I, 123. The current iteration of the Guard Facility was provided after-the-fact permitting approval on August 28, 2014 and passed final inspection on July 28, 2015. In the pursuit of which, Oceanside misrepresented the structure as a simple "Greeter Hale", created solely for the purpose of distributing information. However, misrepresentation or not, the County's grant of a permit for the Guard Facility makes them complicit in the privatization of roads that were expressly to be dedicated to the public. 124. To further highlight the bad acts here, as of 2023, this simple "Greeter Hale" comes equipped with electric gates and cameras. The Guard Facility is now firmly positioned between the ingress and egress point of Hokulia's entrance and members of the public are required to state a name and purpose for their visit to the "public roadway". - ..,., - , YG.TTii 29 710088 125. It is clear that Oceanside designed and built the Guard Facility as a linchpin in keeping Hokulia "private". The culTent iteration of which, affords Oceanside a stranglehold on the public's access to their community, as the Makai Halekii Street Extension is the only road currently entering Hokulia. 126. This privatization, flies entirely in the face of a true "public dedication" as required under the express language of the Development Agreement and the Incorporated Ordinances, and also robs the citizens of Hawaii of the public access to the shoreline park located on the Hokulia Lands, which was bargained for under the Development Agreement. 127. Following a dedication to the County, the Makai Halekii Street Extension and Connector Road will be the responsibility of the County. The County (and by extension its citizens) should not be strapped with the liability and costs associated with maintaining the Makai Halekii Extension and Connector Road when said public roadways have, in effect, become the private property of Oceanside. COUNT I: DECLARATORY RELIEF (All Defendants) 128. Plaintiff hereby incorporates and adopts each and every allegation in all previous paragraphs. 129. An actual controversy exists between Plaintiffs and Defendants because Oceanside has not complied with the Development Agreement and its Incorporated Ordinances, and the County Defendants have not enforced the conditions of the Development Agreement and its Incorporated Ordinances mentioned herein. 130. County Defendants are indefinitely and arbitrarily refusing to enforce the conditions set forth in the Development Agreement and ordinances incorporated therein. 30 710088 131. A declaratory judgment will serve to terminate the uncertainty or controversy giving rise to this proceeding. 132. Plaintiff is entitled to a declaratory judgment that Oceanside has violated the Development Agreement and Incorporated Ordinances by (1) not timely designing, building and dedicating Required Public Roads according to condition M of Ordinance 96-7 as well as conditions L and N of Ordinance 96-8, and (2) developing, marketing, and selling subdivided lots as part of a "private gated community" against the public access requirements of the Development Agreement. 133. Plaintiff is entitled to declaratory judgment that County unlawfully granted Variance to amend conditions expressly required under the Development Agreement and Incorporated Ordinances, as well as impermissibly accepted the Mauka Halekii Extension via Resolution accepting three roadway lots despite the roadway on said lots failing to meet County dedicable standards. COUNT II: INJUNCTIVE RELIEF—MANDAMUS TO ENFORCE DEVELOPMENT AGREEMENT (County Defendants) 134. Plaintiff hereby incorporates and adopts each and every allegation in all previous paragraphs. 135. "Mandamus relief is available to compel an official to perform a duty allegedly owed to an individual only if the individual's claim is clear and certain, the official's duty is ministerial and so plainly prescribed as to be free from doubt, and no other remedy is available." In re Disciplinary Bd. Of the Haw. Supreme Court, 91 Haw. 363, 368, 984 P.2d 688, 693 (1999). 136. Enforcement of the Development Agreement is a ministerial act in that it leaves no discretion to the County Defendants in determining whether the conditions of the Development Agreement have been met. 31 710088 137. Paragraph 25 of the Development Agreement provides: [w]ithin thirty (30) days after the Planning Department or the Office of the Mayor determines on the basis of the periodic report that OCEANSIDE has committed a material breach of the terms or conditions of this Agreement, the Planning Department or the Office of the Mayor, as applicable, shall inform OCEANSIDE in writing of the same, setting forth with reasonable particularity of the nature of the breach and any and all evidence supporting the finding and determination, provided, however, that OCEANSIDE shall be given reasonable time period in which to cure any such material breach. 138. Upon information and belief, the County Defendants have failed to inform Oceanside of its material breach of the Development Agreement due to the fact that Oceanside has not constructed the Required Public Roads to County decidable standards. Upon information and belief the County has failed to give Oceanside reasonable time in which to cure its breach. 139. Plaintiff is entitled to an order preliminarily and permanently enjoining the County Defendants from refusing to enforce the Development Agreement. 140. Plaintiff is entitled to a mandatory injunction and mandamus relief requiring the County Defendants to enforce the conditions of the Development Agreement and require Oceanside to construct the roads listed in condition M of Ordinance 96-7 and conditions L and N of Ordinance 96-8 to dedicable County standards, within a timeframe determined as reasonable by the Court. 141. The County and Oceanside should be required to submit a plan to the Court detailing how and when Oceanside will come into compliance with the ordinances mentioned herein. 142. No other remedy is available because without constructing the Required Public Roads to County dedicable standards Oceanside is unable to comply with the conditions of the Development Agreement. COUNT III: DENIAL OF DUE PROCESS UNDER THE UNITED STATES AND HAWAII CONSTITUTIONS 32 710088 143. Plaintiff hereby incorporates and adopts each and every allegation in all previous paragraphs. 144. Plaintiff has a valuable and constitutionally protected property interest as the neighboring property to Defendant. 145. The Fifth and Fourteenth Amendment of the United States Constitution, as well as the Hawaii State Constitution, provides that no person shall be deprived of life, liberty, or property without due process of law. See also Haw. Const. Art. I, § 5 (stating same). 146. The basic elements of procedural due process of law require notice and an opportunity to be heard at a meaningful time and in a meaningful manner before governmental deprivation of a significant property interest. Sandy Beach Def Fund v. City Council of City & Cnty. of Honolulu, 70 Haw. 361, 378, 773 P.2d 250, 261 (1989) (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). 147. Pursuant to its rule making power under HRS § 91-2(a)(2), Hawaii County adopted Section 23-17 of the Hawaii County Code. Said section of the Code sets forth the notice provision of the variance procedure, expressly stating that in order for a variance to be issued, "the applicant shall serve notice of the application on owners of interest in properties within three hundred feet of the perimeter boundary of the applicant's property and to owners of interests in other properties which the director may find to be directly affected by the variance sought." Further, the Hawaii County Code requires such notice to list "the nature of the use sought and the proposed accompanying structures, if any[.]" 148. In this case, Plaintiff, an "owner[] of interest in properties within three hundred feet of the perimeter boundary of the applicant's property", was afforded neither notice nor an 33 710088 opportunity to be heard at a meaningful time and in a meaningful manner before being deprived by County of its significant property interest via the grant of Variance 10-027. 149. Due process also includes a substantive component that guards against arbitrary and capricious government action which has no substantial relation to the public health, safety, morals or general welfare. Lopez v. State, 133 Haw. 311, 322, 328 P.3d 320, 331 (2014) (quoting In re Herrick, 82 Haw. 329, 349, 992 P.2d 942, 962 (1996)). 150. By granting the Variance the County allowed Oceanside to sidestep the express requirements of the Development Agreement and the Incorporated Ordinances, which had been put in place for the public's health, safety and general welfare. The Variance was granted despite both Oceanside and County having knowledge of the proper procedure to amend ordinances, and acknowledgement of these very issues in a memorandum from Ben Ishii of the Department of Public Works. Thus, County's grant of Variance 10-027 was arbitrary and capricious and directly at odds with the principals of public health, safety and general welfare. 151. For the above reasons, Plaintiff is entitled to a judicial declaration that County has interfered with Plaintiff's procedural and substantive due process rights. RELIEF SOUGHT WHEREFORE, Plaintiff respectfully requests that judgment be entered in their favor and against Defendants as follows: A. For appropriate declaratory relief regarding the unlawful acts and practices of Defendants. B. For a mandamus and injunction (respectively) against the County and Oceanside for the compliance and enforcement of the Development Agreement and Incorporated Ordinances, specifically in regards to building and dedicating the Roads to County standards and the immediate cessation of restricted public access and removal of the Guard Facility and the 34 710088 adjoining walls, gates, etc. that serve to impede public access, in a timeframe the Court determines to be reasonable, as well as declaration that the Variance and Resolution accepting dedication of the Mauka Halekii Extension were illegal and therefore void. C. For the immediate closure of the Mauka Halekii Extension, from the point at which it meets the Old Halekii Street (on the upper east end) and down to the point at which it connects to the Mamalahoa By-Pass Highway, until said Required Public Roadway can be brought up to dedicable county standards, inclusive of construction plans and specifications approved by the Department of Public Works as well as supervision by County engineers at the Department of Public Works during construction of the Mauka Halekii Extension. Such closure is necessary to protect the general public's health, safety and welfare from travel over a substandard road. D. For an award of reasonable attorneys' fees and costs to be awarded on directed judgment. E. Such other and further relief as the Court deems just and proper. DATED: Honolulu, Hawaii, March 31, 2023. DAMON KEY LEONG KUPCHAK HASTERT /s/Toren K Yamamoto KENNETH R. KUPCHAK TOREN K. YAMAMOTO Attorneys for Plaintiff C &J FAMILY PARTNERSHIP 35 710088 APPENDIX "A" _ Z z E- = Z0 -. .~ J r''l '''1.1*-,- .1-.....r.f \\ '; ' ' \ ,, ) ( i ••,. •tmol 7. •,..f.,>): Of ,.(7A-.•j...,(.. Ti---7/1-1 . . 11'11 �'� 1 ,; ;". 1i' /� - - !: � '- �� r ' ..., � T�• ; l �� 1; �: X ,,,,\ . i i --we,,I.,, s. 1 .„--..• •••.. .......„...-c, • --• ;•6,4.4. g J) IL. ‘!'\ IA ,0. ', )‘: ".,r10,-1//p) ,: Ill„ vik _tP .-. ai....4esoi.„_..1.:!: - •7:f.. .,-..,„_. " , :,yei:,' 4 ...... 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"-I . . ara. - ) _:. ,,,,. . . • .........„:„---- .. ......_...,f,:_ , , ...i. i.\* 7----/......77_ • • ..-- f . -:...-...; ....).. ,-/A.:44.,:11.l • 0 . "`-'•". , ,: •-,- .. k: .: 1 1 i -1: ' 5.&t-e .-14.%1;4req,:. 0 u) 4$4---,-,1 ei... 1 • •,0 c j •-,---;----_)_.211 ("ij••-•. - • - ,• . •• . /: ..(;,•,, • \,,. .i( .�� -.-. -::,...1,:::;:r:1-t.S.-7. .—�^t��!-,ice; Cl) � � t•� rZ• i • O A. AOO5 63 APPENDIX "A" APPENDIX "B " ED AN1Riennethspringer/listing/ Big Island(/kennethspringer listing g-island / South Kona(/kennethspringer/listings/big-island/south-kona/)/ Hokulia(/kennethspringer/listings/big-island/south-kona/hokulia/) ;VT n' Ilkk--.1-,,*.lz-aille:":.t.-,..., ,3'to. y i fti' .-41111.',4,4, r:1_1%.-''fr'.::7:17.1.1(:: d� - h : , prey .r :,01W- :^� 4,,,,,,,, . b ' ' kii,47 ','6"141*. In 'I ' . " // ,A14.- ---".AT-Jr" - ---Aii!la0. '' - _,.":;.' " - .,„ -1 - lItr t in t API? LL.,..:' ° �. +� -+� - ! ;' 7. """ -. ..x F 115 .4 :1,7 1 :� � _ 'it? k �' 4 e t' Vj ,,, R a`s� a �3"+s; ' may._ �-lb. ,, .. .. � '''°4, meq 1/ ill " TMw 81-6511 LAUPAI WY in Kealakekua, Hawaii 9 Show Location(/kennethspringer/listings/81-6511-laupai-wy-kealakekua-hi-96750-1#map) Virtual Tix.tr(ht•tps:/i tours.hawaiianvirtualtours.cam/1760809?idx=1) Print Page (https:/)s3-us-west-2.amazonaws.com/rets- mls/feature_sheets/documents/00 0/136/964/origina1/136964_9694c307743f5a8df6b771ca62.8808a.pdf? 1626479712) APPENDIX "B" $390,000 44,257 sq ft land 1.02 ac Est. Mortgage Payment $1,991 (/kennethspringer/listings/81-6511-laupai-wy-kealakekua-hi-96750- 1#mortgage calc Fee Simple I Sold I Days on Market 94 Aloha! k (/keE8 I'i llg� Kenneth (/kennethspringer) Springer (/kennethspringer) REALTOR SALESPERSON kennethspringer@hawaiilife.com (808)937-3535 Mika (/mikaono) Ono (/mikaono) REALTOR SALESPERSON mikaono@hawaiilife.com (808)443-1281 Aloha! - , LB Jef fjef freid) Reid (/jeffreid) REALTOR SALESPERSON jeffreid@hawaiilife.com (808)339-6275 ACTIONS FOR 81-6511 LAUPAI WY A SET ALERT SEE THIS PROPERTY VIRTUAL OR IN-PERSON Located on the Kona Coast of Hawaii Island, Hokuli'a is a stunning 1,300 acre private residential community situated one of the world's most beautiful and culturally significant ocean-side properties. Hokuli'a extends three miles along the Kona Coast, rising from the dramatic shoreline up to an elevation over 700 feet with amazing ocean views. The Club at Hokuli'a is home to Jack Nicklaus Signature Design golf course and constantly ranked among the best courses in Hawaii. Polynesian styled pavilion with full bar and restaurant seating where seasonal whales, spinner dolphins and fishing vessels may be enjoyed. The sunsets are spectacular! Other Club Features are: Fitness Center ( Lap pool and Aquatics Tennis Courts Shoreline Park and Trails Locker Rooms and Lounges Akom and Massages Bocce Ball Courts The luxury amenity offerings available to members and their guests. Lot 183 is a superior 1.02 acre home site with panoramic ocean and whitewater views, gorgeous sunsets, views of Red Hill and the southern coastline with the waves crashing against the cliffs. Excellent home site for a great price. Elevation 579 feet. An equity membership in the Club at Hokuli'a, valued at $150,000, is included in the sales price. Hokuli'a is a gated community with security personnel on duty 24/7. PROPERTY DETAILS FOR 81-6511 LAUPAI WY TAXES FOR 81-6511 LAUPAI WY MLS # 647751 Tax Id 3810290350000 Property Type Land Gross Taxes $2,550 Lot Size (Ft) 44,257 Taxes For Tax Year 2020 Flood Zone X Pool N Water Source Municipal Topography Gentle Slope Solid Waste Disposal Private Contractor Listing Brokerage Windermere C&H Properties Hoa Fees $2,928 View Specify Coastline,Ocean,Ocean Horizon, Sunset County Data Click Here (https://gpublic.schneidercorp.com/Application.as... Appl D=1048&Layerl D=23618&PageTypel D=4&Pag... IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII C &J COUPE FAMILY LIMITED ) CIVIL NO. PARTNERSHIP, ) ) SUMMONS Plaintiff, ) ) vs. ) ) COUNTY OF HAWAII; COUNTY OF ) HAWAII, PLANNING DEPARTMENT; ) ZENDO KERN, IN HIS OFFICIAL ) CAPACITY AS DIRECTOR OF THE ) COUNTY OF HAWAII, PLANNING ) DEPARTMENT; 1250 OCEANSIDE LLC; ) JOHN DOES 1-10; JANE DOES 1-10; DOE ) CORPORATIONS 1-10; DOE ) PARTNERSHIPS 1-10; and DOE ENTITIES) 1-10, ) ) Defendants. ) ) SUMMONS STATE OF HAWAI`I To the above-named Defendants: YOU ARE HEREBY SUMMONED and required to file with the Court and serve upon, KENNETH R. KUPCHAK, and TOREN K. YAMAMOTO, Plaintiff's attorneys, whose address is 1003 Bishop Street, Suite 1600, Honolulu, Hawai`i 96813, an answer to the Complaint which is hereby served upon you, within twenty (20) days after service of this Summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be rendered against you for the relief demanded in the Complaint. This Summons shall not be personally delivered between 10:00 p.m. and 6:00 a.m. on premises not open to the general public, unless a judge of the above-entitled court permits, in writing on this Summons, personal delivery during those hours. A failure to obey this summons may result in an entry of default and default judgment against the disobeying person or party. DATED: Kailua-Kona, Hawai`i, CLERK OF THE ABOVE-ENTITLED COURT In accordance with the Americans with Disabilities Act,and other applicable state and federal laws,if you require a (1.110 1. reasonable dCeommcdetion fora disability,please contact the ADA Coordinator at the Circuit Court Administration O f ce on OAHU-Phone No.8O8-539-4400,TTY 8O$-539-4653,FAX 539-4402,at least ten(10)working days prior to your hearing or appointment date_ 37 710088 STATE OF HAWAII CASE NUMBER CIRCUIT COURT OF THE SUMMONS THIRD CIRCUIT TO ANSWER CIVIL COMPLAINT PLAINTIFF VS. DEFENDANT(S) C & J COUPE FAMILY LIMITED PARTNERSHIP COUNTY OF HAWAII; COUNTY OF HAWAII, PLANNING DEPARTMENT; ZENDO KERN, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE COUNTY OF HAWAII, PLANNING DEPARTMENT; 1250 OCEANSIDE LLC; JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; and DOE ENTITIES 1-10 PLAINTIFF'S NAME&ADDRESS,TEL. NO. DAMON KEY LEONG KUPCHAK HASTERT KENNETH R. KUPCHAK#1085-0 TOREN K. YAMAMOTO#11520-0 1003 BISHOP STREET, SUITE 1600 HONOLULU, HAWAII 96813 TO THE ABOVE-NAMED DEFENDANT(S) You are hereby summoned and required to f le with the court and serve upon DAMON KEY LEONG KUPCHAK HASTERT, ATTN: KENNETH R. KUPCHAK, ESQ. and TOREN K. YAMAMOTO, ESQ. plaintiff's attorney, whose address is stated above, an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the date of service. If you fail to do so,judgment by default will be taken against you for the relief demanded in the complaint. THIS SUMMONS SHALL NOT BE PERSONALLY DELIVERED BETWEEN 10:00 P.M.AND 6:00 A.M. ON PREMISES NOT OPEN TO THE GENERAL PUBLIC, UNLESS A JUDGE OF THE ABOVE-ENTITLED COURT PERMITS, IN WRITING ON THIS SUMMONS, PERSONAL DELIVERY DURING THOSE HOURS. A FAILURE TO OBEY THIS SUMMONS MAY RESULT IN AN ENTRY OF DEFAULT AND DEFAULT JUDGMENT AGAINST THE DISOBEYING PERSON OR PARTY. 9,Ct, The original document is f led in the Effective Date of 28-Oct-2019 J A} Judiciary's electronic case management s system which is accessible via eCourt Kokua Signed by: /s/Cheryl Salmo IA r] at: http:/www.courts.state.hi.us Clerk, 3rd Circuit, State of Hawaii ''-fes &r t Op ' In accordance with the Americans with Disabilities Act, and other applicable state and federal laws, if you require a (is reasonable accommodation fora disability, please contact the ADA Coordinator at the Circuit Court Administration Off cre on HAWAII-Phone No.808-961-7424,TTY 808-961-7422, FAX 808-961-7411, at least ten (10)working days prior to your hearing or appointment date. Form 1C-P-787(3CCT)(10/19) Summons to Complaint VIRG-AC-508(10/19) Form 2-A. CIVIL INFORMATION SHEET STATE OF HAWAII CIRCUIT COURT OF THE CIVIL INFORMATION SHEET Electronically FiIEd THIRD CIRCUIT THIRD CIRCUIT I (A). PLAINTIFF(S) 3CCV-23-0000123 C & J COUPE FAMILY LIMITED PARTNERSHIP 31-MAR-2023 01:33 PM Dkt. 2 CIS ❑ Additional page(s)attached I (B). DEFENDANT(S) COUNTY OF HAWAII; COUNTY OF HAWAII, PLANNING DEPARTMENT; ZENDO KERN, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE COUNTY OF HAWAII, PLANNING DEPARTMENT; 1250 OCEANSIDE LLC; JOHN DOES 1-10 ❑Additional page(s)attached II.(A). PLAINTIFF'S(S')ATTORNEY(NAME/NUMBER) II.(B). DEFENDANT'S(S')ATTORNEY(NAME/NUMBER) DAMON KEY LEONG KUPCHAK HASTERT KENNETH R. KUPCHAK#1085-0; TOREN K. YAMAMOTO#11520-0; 1003 BISHOP ST., STE. 1600, Honolulu, HI 96813 ❑Additional page(s)attached ❑Additional page(s)attached III. NATURE OF SUIT IV.ORIGIN V. DEMAND ❑ Contract E (A). Original Proceeding ❑ Motor Vehicle Tort ❑ (B).Transfer from District Court CIV. NO. ❑ Assault&Battery ❑ (C).Transfer from another Circuit CIV. NO. ❑ Construction Defects ❑ Medical Malpractice ❑ Legal Malpractice VI. JURY DEMAND VII. CLASS ACTION VIII. REQUEST TO EXEMPT ❑ Product Liability FROM ARBITRATION ❑ Other Non-Vehicle Tort ❑ YES ❑ YES Q' YES ❑ Condemnation I2 NO IE NO ❑ NO ❑ Foreclosure ❑ Agreement of Sale Foreclosure ❑ Agency Appeal E Declaratory Judgment IX. RELATED CASE(S) ❑ Other Civil Action JUDGE ❑ Environmental Court ❑ Asbestos CIVIL NUMBER ❑ Consumer Debt Collection ❑ Quiet Title DATE ATTORNEY NAME/PARTY NAME SIGNATURE March 31, 2023 Toren K. Yamamoto /s/Toren K. Yamamoto RESERVED FOR COURT USE CIVIL NO. In accordance with the Americans with Disabilities Act,and other applicable state and federal laws, if you require reasonable accommodation for a disability, please contact the ADA Coordinator at the Circuit Court Administration Office on OAHU-Phone No. 808-539-4400,TTY 808-539-4853, FAX,539-4402; MAUI-Phone No.808-244-2929, FAX 808-244- 2777; HAWAII-Phone No.808-961-7424,TTY 808-961-7422, FAX 808-961-7411; KAUAI-Phone No.808-482-2365, TTY 808-482-2533, FAX 808-482-2509,at least ten(10)working days prior to your hearing or appointment date. I do hereby certify that the foregoing is a full,true and correct copy of the official court record of the Courts of the State of Nawari.(ReV. ? 11..7.5141 Dated at:Hilo,Hawaii 31-MAR-2023,/s/Cheryl Salmo,Clerk of the Third Judicial Circuit,State of Hawaii $ -a 8 r o � z o iiHo a ; ¢ - PC z O cr, P <C,.:4 a V O (.4 o x .- V M N M W o aw0 ,� X00 C N IX Z 'o '�HWvi W H M Mo CI a 4-,C) o H H W cA at OQ w a4 OQZ Q .- w w .0ti w w Q� Cap WW ¢wWo HUZct w Oa0~ ti �11 -10 Q z H Y y a'�'1-1~' 7:14) '1) z 44 z �� z WH L, C w Q W Q - N Wp2w z u a' o °o Q o ta EZ W(� Q .a lul W c/ Q N O M Q H L. O •_ R3 W H - _ - H O � � y Z N ' 1 44 /1 Ocn Q -C a o 1-4 w aOW o o i a ° , ai n ° O" dW r=e iM V O a dQgo ,- NO NNaH .> o wwo w = E CZ Q d o x M; w HI W c4-' C'l 7:j ',,,i act W CNI o o LwpQ o ° r cztCi) � Q U Ctt aQO 11 9 UOF" 0 O aa, ° y H Cil N (..)1Z(..)1Z121 U g - Q ' Oo _ yo o O O •?aU M U H O H 44 H - FUM Q0.- w H N NU •A 5• c. 'v. y o -� .1,' a. s z vup E . F" H y Z cl Q C.) U U N tA� C U C C 0 o a w �' 'L A ct 0a c 0 . 0 o o C 0 0 0 on tt -0 o } U 0 $"-+ .a La 00 o " E O N O N Q 4-. 0 O ct O 0 O 0 U O o U a Ct 5 O O 69 4-i O U Ct rf • SZLI • z U 0 m Of Counsel: DAMON KEY LEONG KUPCHAK HASTERT Attorneys at Law Electronically Filed A Law Corporation THIRD CIRCUIT 3CCV-23-0000123 KENNETH R. KUPCHAK 1085-0 23-JUN-2023 TOREN K. YAMAMOTO 11520-0 08:24 AM JONATHAN N. MARCHUK 11664-0 Dkt. 67 MPSJ 1003 Bishop Street, Suite 1600 Honolulu, Hawaii 96813 www.hawaiilawyer.com Telephone: (808) 531-8031 Facsimile: (808) 533-2242 Attorneys for Plaintiff C & J COUPE FAMILY LIMITED PARTNERSHIP IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII C &J COUPE FAMILY LIMITED ) CIVIL NO. 3CCV-23-0000123 PARTNERSHIP, ) ) PLAINTIFF C & J COUPE FAMILY Plaintiff, ) LIMITED PARTNERSHIP'S MOTION ) FOR PARTIAL SUMMARY vs. ) JUDGMENT; MEMORANDUM IN ) SUPPORT OF MOTION; COUNTY OF HAWAII; COUNTY OF ) DECLARATION OF CHARLES HAWAII, PLANNING DEPARTMENT; ) COUPE; DECLARATION OF TOREN ZENDO KERN, IN HIS OFFICIAL ) K. YAMAMOTO; EXHIBIT "A"—"E"; CAPACITY AS DIRECTOR OF THE ) CERTIFICATE OF SERVICE COUNTY OF HAWAII, PLANNING ) DEPARTMENT; 1250 OCEANSIDE LLC; ) DATE: October 9, 2023 JOHN DOES 1-10; JANE DOES 1-10; DOE ) TIME: 9:00 a.m. CORPORATIONS 1-10; DOE ) JUDGE: The Honorable Robert D.S. Kim PARTNERSHIPS 1-10; and DOE ENTITIES) 1-10, ) No Trial Date Set. Defendants. ) 779505 Exhibit 5 PLAINTIFF C & J COUPE FAMILY LIMITED PARTNERSHIP'S MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiff C & J FAMILY PARTNERSHIP ("Coupe Family" or "Plaintiff") respectfully moves this Court for partial summary judgment as to COUNT I & II of the Complaint, as they pertain to the Connector Road and Makai Halekii Extension (as defined in the memorandum attached herein, as well as the Complaint (Mar. 31, 2023) [Dkt. 1]), pursuant to Rule 7 and 56 of the Hawaii Rules of Civil Procedure and Rule 7 of the Rules of the Circuit Court of the State of Hawaii. Defendants COUNTY OF HAWAII1; 1250 OCEANSIDE LLC; JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; and DOE ENTITIES 1-10 have failed for 24 years to design, build, and dedicate certain required public roads according to a development agreement entered into between the Defendants and recorded in the State of Hawaii Bureau of Conveyances on April 30, 1998 ("Development Agreement"), and in which two ordinances, Ordinance No. 96-8 and Ordinance No. 96-7, were incorporated ("Incorporated Ordinances"). Further, the Oceanside Defendant has developed, marketed, and sold subdivided lots in its Hokulia development ("Hokulia") as part of a "private gated community" in the face of the public access requirements of the Development Agreement. This motion seeks the following rulings: (1) Oceanside has violated the Development Agreement and Incorporated Ordinances by failing to timely design, build and dedicate the Connector Road and Makai Halekii Extension, as required by the Development Agreement and Incorporated Ordinances, and therefore declaratory judgment proclaiming such should be entered in favor of the Plaintiff and (2) a permanent injunction should be issued requiring the County of 1 Parties have stipulated to amend the Complaint in order to remove COUNTY OF HAWAII,PLANNING DEPARTMENT and ZENDO KERN,IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE COUNTY OF HAWAII,PLANNING DEPARTMENT. 2 779505 Hawaii to begin the process required to cure such material breach of the Development Agreement as prescribed by the Hawaii County Code 30-6. This motion is based on the Memorandum in Support of Motion, the Declarations and Exhibits attached hereto, the record and files in this case, and such other matters as may be presented at the hearing on this motion and considered by the court. DATED: Honolulu, Hawaii, June 23, 2023. DAMON KEY LEONG KUPCHAK HASTERT /s/Toren K. Yamamoto KENNETH R. KUPCHAK TOREN K. YAMAMOTO JONATHAN N. MARCHUK Attorneys for Plaintiff C &J FAMILY PARTNERSHIP 3 779505 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII Electronically Filed THIRD CIRCUIT C & J COUPE FAMILY LIMITED ) CIVIL NO. 3CCV-23-00001CV-23-0000123 PARTNERSHIP, ) 23-JUN-2023 ) MEMORANDUM IN supromat ouvi Plaintiff, ) MOTION Dkt. 68 MES ) vs. ) ) COUNTY OF HAWAII; COUNTY OF ) HAWAII, PLANNING DEPARTMENT; ) ZENDO KERN, IN HIS OFFICIAL ) CAPACITY AS DIRECTOR OF THE ) COUNTY OF HAWAII, PLANNING ) DEPARTMENT; 1250 OCEANSIDE LLC; ) JOHN DOES 1-10; JANE DOES 1-10; DOE ) CORPORATIONS 1-10; DOE ) PARTNERSHIPS 1-10; and DOE ENTITIES) 1-10, ) ) Defendants. ) MEMORANDUM IN SUPPORT OF MOTION 779505 TABLE OF CONTENTS I. INTRODUCTION 1 II. FACTS 2 A. General Background. 2 B. Oceanside was required under the Development Agreement and Incorporated Ordinances to dedicate the Required Roadways since 1999 3 C. The Makai Halekii Street Extension and Connector Road have not and cannot lawfully be dedicated in their current state, because they have not been designed or built to County standards. 4 III. LEGAL STANDARD 5 A. Motion for Summary Judgment 5 B. Declaratory Relief 5 C. Injunctive Relief 6 IV. ARGUMENT 7 A. Summary Judgment Should be Issued as to the Material Breach of the Development Agreement and Incorporated Ordinances Because There is no Genuine Issue of Material Fact 7 1. The Required Roads should have Been Designed, Built, and Dedicated, Upon Final Subdivision Approval of the First Phase of Development in 1999. 7 2. The Connector Road and Makai Halekii Extension were to be Dedicated to the County within a"Timely Fashion", Which has Clearly Expired. 10 B. Declaratory Judgment Should Be Issued in Plaintiff's Favor for Oceanside's Failure to timely Design, Build, and Dedicate the Required Roadways. 11 C. Mandatory Injunction Should be Issued Compelling the County to Declare Material Breach of the Development Agreement by Oceanside and Begin the Cure Period Prescribed under the Hawaii County Code. 12 1. Once it is Determined that Oceanside has Materially Breached the Development Agreement, Plaintiff Prevailed on the Merits. 12 2. Balance of Irreparable Damage Favors the Issuance of Permanent Injunction. 12 3. Public Interest Supports the Grant of a Permanent Injunction 14 V. CONCLUSION 14 i 779505 TABLE OF AUTHORITIES Page(s) Cases Pacific Meat Co. v. Otagaki, 47 Haw. 652, 394 P.2d 618 (1964) 6 Bd. of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972) 13 Bean v. Independent American Say. Ass'n, 838 F.2d 739 (5th Cir. 1988) 13 State ex rel. Bronster v. U.S. Steel Corp., 82 Hawai'i 31, 919 P.2d 294 (1996) 5 Ching v. Hawaiian Rests., Ltd., 50 Hawaii 563, 445 P.2d 370 (1968) 8 City & Cnty of Honolulu v. Kam, 48 Haw. 349, 402 P.2d 683 (Haw. 1965) 10 Consol. Amusement Co. v. Waikiki Bus. Plaza, Inc., 6 Haw. App. 312, 719 P.2d 1119 (App. 1986) 5 County of Hawai'i v. C&J Coupe Family Ltd. P'ship, 119 Haw. 352, 198 P.3d 615 (2008) 1 County of Hawai'i v. C&J Coupe Family Ltd. P'ship, 120 Haw. 400, 208 P.3d 713 (2009) 1 County of Hawai'i v. C&J Coupe Family, Ltd. P'ship, 124 Haw. 281, 242 P.3d 1136 (2010) 1 Hanabusa v. Lingle, 119 Haw. 341, 198 P.3d 604 (2008) 10 Hawaii v. Off. of Hawaiian Aff., 556 U.S. 163, 129 S. Ct. 1436, 173 L. Ed. 2d 333 (2009) 12 Jou v. Dai-Tokyo Royal State Ins. Co., 116 Hawai'i 159, 172 P.3d 471 (2007) 5 Klausmeyer v. Makaha Valley Farms, Ltd., 41 Haw. 287 (1956) 13 ii 779505 Lat v. Woo, 2022 Haw. App. LEXIS 277 (2022) 13 Legal Aid Soc'y of Haw. v. Legal Serv. Corp., 961 F. Supp. 1402 (D. Haw. 1997) 7 Morgan v. Planning Dept., County of Kauai, 104 Hawai'i 173, 86 P.3d 982 (2004) 6 O'Hagan v. United States, 86 F.3d 776 (8th Cir. 1996) 13 Off of Hawaiian Alf v. Hous. & Comm. Dev. Corp. of Haw., 117 Hawai'i 174, 177 P.3d 884 (2008), rev'd on other grounds by Hawaii v. Off. ofHawaiianAff., 556 U.S. 163, 129 S. Ct. 1436, 173 L. Ed. 2d 333 (2009) 7, 12 Reed v. City & County, 76 Hawai'i 219, 873 P.2d 98 (1994) 5 Sandy Beach Defense Fund v. City Council of Honolulu, 70 Haw. 361, 773 P.2d 250 13 Santiago v. Tanaka, 137 Haw. 137 (2015) 8, 10 Stop Rail Now v. DeCosta, 120 Hawai'i 238, 203 P.3d 658 (App. 2008) 6 Tax Found. of Haw. v. State, 144 Hawai`i 175, 439 P.3d 127 (2019) 6 The 7's Enters. v. Rosario, 111 Hawai`i 484, 143 P.3d 23 (2006) 12, 13 Wahba, LLC v. USRP (Don), LLC, 106 Hawai'i 466, 106 P.3d 1109 (2005) 6, 7 Statutes Haw. Rev. Stat. Section 30-2 14 Hawaii County Code Section 30-6 5, 15 Haw. Rev. Stat. § 632-1 6 Ordinance 96-7 3, 5 Ordinance 96-8 2, 3, 4, 5, 10 779505 Other Authorities Hawaii Rules of Civil Procedure Rule 7 5 Hawaii Rules of Civil Procedure Rule 56 5 Hawaii Rules of Civil Procedure 56(c) 5 Restatement(Second) of Contracts § 203 (1981), cmt. b 8 Rules of the Circuit Court Rule 7 5 iv 779505 I. INTRODUCTION To make Hokulia financially lucrative (the "Kona Coast's most spacious and private luxury residential community," its website touts) over the decades it would take to market and absorb the project's costs, Oceanside first needed to secure a 30-year zoning freeze prohibiting the County from changing or otherwise updating the governing land use regulations.3 To induce the County to do so, in the 1998 Development Agreement, Oceanside promised (among other things4) that at its sole expense, it would design, build and dedicate to the public, unfettered access through Hokulia via two roads: one running north-and-south ("Connector Road"), the other east-and-west ("Makai Halekii Extension"). Oceanside's promises were for the benefit of the public and, specifically, for Oceanside's neighboring property owners to access their land. Oceanside promised to do all this before the first final subdivision approval of any portion of Hokulia. Oceanside received the first final subdivision approval (for phase 1 of Hokulia), on September 18, 1999, but to this day, Oceanside has failed to make the requisite dedications. To be sure, Oceanside has built two roads: the Connector Road and Makai Halekii extension, both having been constructed around 1999. But neither the Connector Road nor the Makai Halekii Extension has been designed or built to the standards required for dedication to the public, and, in addition, neither of the roads have been dedicated to the County as promised; these are facts that both Oceanside and the County unabashedly acknowledge in their Request for Amendment, dated January 23, 2020, attached herein as Exhibit "A".5 In short, for nearly a quarter of a century Oceanside has accepted all the benefits of the Development Agreement without fulfilling its essential obligations; all the while enjoying the resultant savings and marketing advantages of their"private" luxury community. The Coupe Family isn't merely a random member of the public (as Defendants would have you believe) denied the right to use public roads up to public design and construction standards, but is Oceanside's neighbor to the south, expressly acknowledged and benefitted See Hokulia,Breathing Room with a View,https://hokulia.com/. 3 Any capitalized terms used here are the same as set out in the Complaint(Mar. 31,2023) [Dkt. 1]. See, e.g., County of Hawaii v. C&J Coupe Family Ltd. P'ship, 119 Haw. 352, 198 P.3d 615 (2008); County of Hawai'i v. C&7 Coupe Family Ltd. P'ship, 120 Haw. 400, 208 P.3d 713 (2009); County of Hawaii v. C&J Coupe Family,Ltd. P'ship, 124 Haw. 281,242 P.3d 1136(2010). In Oceanside's January 23, 2020,Request to Amend Condition M of Ordinance 96-8, Oceanside admits that"[t]he [Connector Road and Makai Halekii Extension] were constructed in 1999,based on a non-dedicable roadway design approved by the Department of Public Works at the time, and these improvements were completed a short time later[,]" and that rather than dedicate the two roadways the county should allow them "to remain in private ownership, based on the current "as-built" construction, without improving the roadways to a County-dedicable standard." 779505 under the Development Agreement and Incorporated Ordinances. The Coupe Family property abuts the Connector Road's southern point of access, and for twenty-four long years they have been denied access to such. This lawsuit stands as the Coupe Family's last available means to get Oceanside to live up to its promises. Since about 2021, the Coupe Family has implored Oceanside to meet its obligations, and has equally beseeched the County, as the contracting party, to compel adherence.' These efforts have been met with silence and delay, and, after this lawsuit was instituted, an attempt to fundamentally alter the Development Agreement and its attendant obligations: Oceanside has once again asked the County to essentially rewrite the Development Agreement to void the requirement to dedicate the two roads to the public,keep them in Oceanside's private ownership, and to grant Oceanside another decades-long land use regulatory freeze for no consideration whatsoever. See 2023 Amendment Request, attached herein as Exhibit "B" The Coupe Family now seeks summary judgment that Oceanside's failure to properly design, build and dedicate the Connector Road and Makai Halekii Extension to the public is finally called out for what it is: a material breach of the Development Agreement obligations; and that such breach warrants permanent injunction enjoining the County to declare it so and begin the cure process under Hawaii County Code Section 30-6. II. FACTS A. General Background. Since 1996, pursuant to conditions set out in Ordinance No. 96-8 and Ordinance 96-77 ("Incorporated Ordinances"), attached herein for reference as Exhibit "C", Oceanside has been required to provide unfettered public access through Hokulia to both North and South (via the Connector Road) and East and West (via the Makai Halekii Extension). The Connector Road and Makai Halekii Extensions were to be designed and built to dedicable County standards, and unfettered public access was to be guaranteed through the dedication of said roads to the County. Under the Incorporated Ordinances, these conditions were to be met prior to the first final subdivision approval of any portion of Hokulia. The Incorporated Ordinances were later incorporated by reference into a development agreement entered into between Oceanside and 6 Plaintiff has had a number of sit-down meetings, phone calls, and correspondences listing out the details of the breach to the Defendants.See Declaration of Charles Coupe("Coupe Dec.) Ordinance No. 96-8 and 96-7 has been submitted in County Defendant's Motion to Dismiss Complaint[Dkt.21] as Exhibit"2"and Exhibit"1"respectively,but for convenience have been attached herein as Exhibit"D". 2 779505 County Defendant, recorded in the State of Hawaii Bureau of Conveyances on April 30, 1998 ("Development Agreement")8, attached herein as Exhibit"D". B. Oceanside was required under the Development Agreement and Incorporated Ordinances to dedicate the Required Roadways since 1999. Specifically, Section 16 of the Development Agreement expressly requires that Oceanside "provide roadway stub-outs . . . to provide future connections between the Property and its adjacent north and south boundaries." As material consideration incorporated by the Development Agreement, Condition L(5) of Ordinance 96-8, which the Development Agreement incorporated by reference, similarly required that Oceanside "provide roadway stub-outs . . . to provide future connections between the subject property, and the adjacent properties to the north and south[.]" Condition L(4) of Ordinance 96-8 required Oceanside to "construct the extension of Halekii Street through the [Development]". The provisions of Condition L were to be completed "[p]rior to the issuance of Final subdivision Approval for any portion of the subject property." Condition M of Ordinance 96-8, further required that "[a]ll roadway improvements stated in Condition L of [Ordinance 96-8] shall be dedicated to the County of Hawaii[.]" Condition M and Condition L, through interpretation of the Development Agreement in its totality, imposed a timeline for the design, build, and dedication of the Connector Road and Makai Halekii Extension on or before first final subdivision approval, the first of which, Final Subdivision approval for Phase I, occurred On September 18, 1999. See 2009 Annual Report, attached herein as Exhibit "E". In addition, a catchall time requirement listed under Condition Z of Ordinance 96-8 states that all conditions in Ordinance 96-8 should "be met or substantially complied with in a timely fashion," thus imposing a general standard to the timeliness for the completion of all of the Ordinance's conditions. These exact conditions were incorporated into the Development Agreement as specific consideration promised by Oceanside in exchange for County's agreement to freeze the then existing land use controls on Hokulia. To date, and upon Oceanside's own admission, none of these conditions have been adhered to. The Development Agreement has been submitted in County Defendant's Motion to Dismiss Complaint[Dkt. 21] as Exhibit A and in Oceanside's Motion to Dismiss Complaint[Dkt. 15] as Exhibit 3,but for convenience has been attached herein as Exhibit"E". 3 779505 C. The Makai Halekii Street Extension and Connector Road have not and cannot lawfully be dedicated in their current state, because they have not been designed or built to County standards. In a letter dated January 23, 2020, Oceanside requested to amend the Development Agreement and Incorporated Ordinances in order to exculpate themselves from their duty to dedicate the Connector Road and Makai Halekii Extension to the County ("Amendment Request"). See Exhibit "A". In the Amendment Request, Oceanside makes a number of admissions as to both the Connector Road and Makai Halekii Extension. Specifically, the amendment request expressly admits and acknowledges that the Connector Road and Makai Halekii Extension were "constructed in 1999, based on a non-dedicable roadway design approved by the Department of Public Works at the time, and these improvements were completed a short time later" and that rather than dedicate the two roadways the county should allow them "to remain in private ownership, based on the current `as-built' construction, without improving the roadways to a County-dedicable standard."9 This same language was echoed in the 2023 Amendment Request as well. See Exhibit"B". For the purposes of this Motion, both amendment requests represent an undisputable fact: neither the Connector Road nor the Makai Halekii Extension have been designed, built, or dedicated to the County, in direct contradiction to the Development Agreement and Incorporated Ordinances. Further, the facts here display a pattern of actions (or inaction) that prove that Oceanside has no intention of ever dedicating the Connector Road or the Makai Halekii Extension. For decades, Oceanside has been marketing Hokulia as a "private luxury residential community" 10 despite the clear requirements to dedicate the Connector Road and Makai Halekii Extension within its community to the public. To further this interest, Oceanside has even fortified Hokulia against the public by erecting a guard facility at its only entrance. See [Dkt. 1] ¶ 124. Failure to dedicate the Connector Road and Makai Halekii Extension not only impairs Plaintiff's access to its property (via the Connector Road), but also restricts and burdens its ability to access the public beach park on the western end of Oceanside's property(via the Makai Halekii Extension). Thus, for twenty-four years, Plaintiff and the general public have been 'Oceanside also admits that the Mauka Halekii Extension"was not build to County dedicable standards,however, the County accepted this roadway segment for dedication, and now this Mauka segment of Halekii Street is in the County's roadway inventory." 10 See Hokulia,Breathing Room with a View,https://hokulia.com/. 4 779505 deprived of valuable consideration promised under the Development Agreement and Incorporated Ordinances. Oceanside has been allowed to illegally benefit from said deprivation, and such ill gained fortune cannot be allowed to continue; to pursue that end, County should be compelled to enforce the Development Agreement to the fullest extent. III. LEGAL STANDARD A. Motion for Summary Judgment A motion for summary judgment should be granted if the record discloses that there are no genuine issues as to any material fact and the movant is entitled to judgment as a matter of law. Haw. R. Civ. P. 56(c); Consol. Amusement Co. v. Waikiki Bus. Plaza, Inc., 6 Haw. App. 312, 317, 719 P.2d 1119, 1123 (App. 1986). A fact is "material" for purposes of summary judgment if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense. State ex rel. Bronster v. U.S. Steel Corp., 82 Hawai'i 31, 39, 919 P.2d 294, 301 (1996). "Bare allegations or factually unsupported conclusions are insufficient to raise a genuine issue of material fact" and do not prevent the entry of summary judgment. Reed v. City & County, 76 Hawaii 219, 225, 873 P.2d 98, 104 (1994). In response to a motion for summary judgment, the burden shifts to the non-moving party to "demonstrate specific facts, as opposed to general allegations, that present a genuine issue worthy of trial."Jou v. Dai-Tokyo Royal State Ins. Co., 116 Hawaii 159, 164, 172 P.3d 471, 476 (2007) (quotations omitted). B. Declaratory Relief Hawai'i Revised Statutes ("HRS") Section 632-1 creates a cause of action for declaratory relief. It states, in pertinent part: (b)]Relief by declaratory judgment may be granted in civil cases where an actual controversy exists between contending parties, or where the court is satisfied that antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation, or where in any such case the court is satisfied that a party asserts a legal relation, status, right, or privilege in which the party has a concrete interest and that there is a challenge or denial of the asserted relation, status, right, or privilege by an adversary party who also has or asserts a concrete interest therein, and the court is satisfied also that a declaratory judgment will serve to terminate the uncertainty or controversy giving rise to the proceeding. Accordingly, a party properly brings a claim for declaratory relief: 5 779505 (1) where antagonistic claims exist between the parties (a) that indicate imminent and inevitable litigation, or (b) where the party seeking declaratory relief has a concrete interest in a legal relation, status, right, or privilege that is challenged or denied by the other party, who has or asserts a concrete interest in the same legal relation, status, right, or privilege; and (2) a declaratory judgment will serve to terminate the uncertainty or controversy giving rise to the proceeding. Tax Found. of Haw. v. State, 144 Hawai`i 175, 189, 439 P.3d 127, 141 (2019). "The purpose of the declaratory judgment is to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations . . . . " Pacific Meat Co. v. Otagaki, 47 Haw. 652, 653, 394 P.2d 618, 656 (1964). C. Injunctive Relief Injunctions can be affirmative or mandatory. See Stop Rail Now v. DeCosta, 120 Hawai'i 238, 244, 203 P.3d 658, 664 (App. 2008). A mandatory injunction compels one to perform an affirmative act in order to do or undo a previous act. Wahba, LLC v. USRP (Don), LLC, 106 Hawai'i 466, 472, 106 P.3d 1109, 1115 (2005). The purpose of an injunction, in general, is to "protect property or other rights from irreparable injury by prohibiting or commanding certain acts." Morgan v. Planning Dept., County of Kauai, 104 Hawai'i 173, 188, 86 P.3d 982, 997 (2004). Most injunctions are "prohibitory," meaning that "the matter complained of is a consequence of present conduct and the injunction simply orders a defendant to refrain from engaging in the designated acts." Wahba, 106 Hawai'i at 472, 106 P.3d at 1115. A mandatory injunction is distinguishable from a prohibitory injunction in that a "mandatory injunction commands performance of certain acts whereas a prohibitory injunction prohibits the performance of certain acts." Legal Aid Soc y of Haw. v. Legal Serv. Corp., 961 F. Supp. 1402, 1408 n.3 (D. Haw. 1997). Mandatory injunctions may be issued when "the facts and law clearly favor the moving party." Wahba, 106 Hawai'i at 472, 106 P.3d at 1115. With regard to permanent injunctions, the Hawai'i Supreme Court has articulated the three factors to consider: "(1) whether the plaintiff has prevailed on the merits; (2) whether the balance of irreparable damage favors the issuance of a permanent injunction; and (3) whether the public interest supports granting such an injunction." Off. of Hawaiian Aff. v. Hous. & Comm. Dev. Corp. of Haw., 117 Hawai'i 174, 212, 177 P.3d 884, 922 (2008), rev'd on other grounds by Hawaii v. Off. of Hawaiian Aff,, 556 U.S. 163, 129 S. Ct. 1436, 173 L. Ed. 2d 333 (2009)). 6 779505 IV. ARGUMENT There is no genuine issue of material fact that the language of the Development Agreement requires the Connector Road and Makai Halekii Extension to be designed, built and dedicated to the County of Hawaii as important public infrastructure. See Exhibit "C" and "D". It was also expressly admitted by Oceanside that the Required Roads were not designed or built to dedicable county standards and have, to date, not been dedicated. See Exhibit"A" and"B". Failure to design and build the Required Roads to County Standards knowing that they needed to be dedicated to said standards, and the continued failure to dedicate the Connector Road and Makai Halekii Street, is a clear breach of the Development Agreement, to which County Defendant have failed to address. Due to this audacious breach of the Development Agreement by Oceanside, and the continued failure to enforce the Development Agreement by County Defendant, the Court should first grant declaratory relief to Plaintiff finding that the Development Agreement was materially breached, and subsequently issue a mandatory injunction to affirmatively enjoin the County Defendant to declare such breach. A. Summary Judgment Should be Issued as to the Material Breach of the Development Agreement and Incorporated Ordinances Because There is no Genuine Issue of Material Fact. The issues presented here are simple, and the facts relevant to said issues have been thoroughly admitted: (1) the Required Roads were to be designed, built, and dedicated to County standards, and, (2) contrary to such edict, the Required Roads have not been designed or built to County standards, and have not been dedicated. Under the basic principles of contract interpretation, the time period allotted for such dedication has long passed. These failures to design, build, and dedicate the Connector Road and Makai Halekii Extension are clear, and so to is the material breach of the Development Agreement and Incorporated Ordinances. 1. The Required Roads should have Been Designed, Built, and Dedicated, Upon Final Subdivision Approval of the First Phase of Development in 1999. Under principles of contract interpretation, an agreement should be construed as a whole and its meaning determined from the entire context and not from any particular word, phrase, or clause. Ching v. Hawaiian Rests., Ltd., 50 Hawaii 563, 565, 445 P.2d 370, 372 (1968). "Since an agreement is interpreted as a whole, it is assumed in the first instance that no part of it is superfluous." Santiago v. Tanaka, 137 Haw. 137, 155 (2015) (quoting the Restatement (Second) 7 779505 of Contracts § 203 (1981), cmt. b.). Contract terms should be interpreted according to their plain, ordinary, and accepted sense in common speech. Id. The provisions of Condition L, expressly state that Oceanside was to "construct the [Halekii Extensions] through the subject property . . . and provide the [Connector Road]rr. . . to provide future connections between the subject property and the adjacent properties to the north and south." This was to be completed "[p]rior to the issuance of Final Subdivision Approval for any portion of the subject property[.]" In addition, Condition M requires that "[a]ll roadway improvements stated in Condition L of this ordinance shall be dedicated to the County of Hawaii." The First Phase of the Development received final subdivision approval in 1999, meaning the Makai Halekii Extension was to be "constructed" and the Connector Road was to be "provided", over twenty-four years ago. See Exhibit "E" (stating that "[o]n September 18, 1999, the County issued Final Subdivision approval for Phase I[.]"). The Makai Halekii Extension was not constructed to the required standards in 1999, and the Connector Road has, to this day, not been provided. These failures constitute a clear breach of the Development Agreement and Incorporated Ordinances. a. Breach of L(5) through Failure to Dedicate Connector Road upon First Final Subdivision Approval. Oceanside's failure to "provide" the Connector Road upon first final subdivision approval was a clear breach of the Development Agreement and Incorporated Ordinances. While Condition L(1) through L(4) use the express language of"shall construct"12 in regards to many roadway features required under the Development Agreement and Incorporated Ordinances, Condition L(5), regarding the Connector Road, differentiates from that norm to dictate that Oceanside shall "provide roadway stub-outs . . . to provide future connections between the subject property, and the adjacent properties to the north and south." This is a difference with definite distinction, and the choice of the word "provide" cannot be viewed as superfluous. 11 Not only did the Development Agreement incorporate the Incorporated Ordinances by reference,but Section 16 of the Development Agreement expressly requires that Oceanside"provide roadway stub-outs . . .to provide future connections between the Property and its adjacent north and south boundaries." 12 Stating that Oceanside"shall construct the channelization and signalization of the Mamalahoa Highway-Halekii Street intersection"; "shall construct the Mamalahoa Highway Bypass"; "shall construct the channelization improvements on Kuakini Highway at its intersection with the north end of the Mamalahoa Bypass[.]"See Exhibit 8 779505 Rather than conditioning the requirement to "construct" the Connector Road on subdivision approval, Condition L(5) directly and distinctly requires Oceanside to "provide" the Connector Road. The word provide commonly means "to put (something) into the possession of someone for use or consumption"13 The word "provide" when viewed in the totality of the document clearly is referring to the "providing" of the Connector Road through the dedication required in the very next condition, Condition M, necessarily designating the party to whom the road was to be "provided" (i.e. to the County). Thus, the Connector Road was independently ripe for dedication prior the first phase subdivision approval in 1999. Failure to effectuate such dedication was a clear breach of the Development Agreement. Thus, Oceanside breached the Development Agreement by failing to dedicate the Connector Road upon Phase I final subdivision approval and has unlawfully benefitted from such breach ever since. b. Breach of Condition L(4) due to Failure to Construct the Makai Halekii Extension to Dedicable County Standards. Oceanside's admitted failure to design and build the Makai Halekii Extension to Dedicable County Standards also is a clear breach of the Development Agreement and Incorporated Ordinances. Agreements are to be viewed and interpreted in their totality. In this case, "[p]rior to the issuance of Final Subdivision Approval for any portion of the subject property," Oceanside was required to "construct the extension of Halekii Street through [Hokulia]. . . which phasing of improvements shall be approved by the Department of Public Works." Condition M plays directly into Condition L(4), stating that "[a]ll roadway improvements stated in Condition L of this ordinance shall be dedicated to the County of Hawaii." Because Condition M calls for dedication of the roads, it would be nonsensical for Condition L's requirement to "construct" the Halekii Extensions to call for anything but the minimum of dedicable county standards. Though Condition L(4) gives the Department of Public Works ("DPW") oversight as to phasing, it does not give such department any leeway (at that time) over the standards to which Halekii Street was to be built. The fact that the Development Agreement and Incorporated Ordinances gives DPW approval authority only as to the phasing of the construction cannot be viewed as superfluous. Approval authority was so limited because the standards to which the Required Roadways were to be built is clear and affords no discretionary 13 Provide,Merriam-Webster.com(accessed June 22,2023). 9 779505 leeway: roads that are to be dedicated MUST be constructed to dedicable County standards. The timeline for such construction was strictly allotted to take place prior to any subdivision approval. The first of many subdivision approvals, was issued all the way back in 1999. Exhibit «E , Thus, the admitted failure of Oceanside to design and build (i.e. construct) the Makai Halekii Extension was a breach of the Development Agreement and Incorporated Ordinances. 2. The Connector Road and Makai Halekii Extension were to be Dedicated to the County within a "Timely Fashion", Which has Clearly Expired. Even if the parties had not clearly agreed to the "Final Subdivision Approval for any portion of the subject property" as the timeline to complete the design, build, and dedication of the Connector Road and Makai Halekii Extension (which as stated above, they had), Condition Z of Ordinance 96-8 states that all conditions in Ordinance 96-8 should "be met or substantially complied with in a timely fashion," thus imposing a time is of the essence standard to the Development Agreement and Incorporated Ordinances. In any case, when an agreement does not provide a specific time for performance, it must be read as requiring that performance to be commenced within a reasonable time. Santiago v. Tanaka, 137 Haw. 137, 155 (1976) (finding that a two and a half year delay in beginning a project was unreasonable, and thus a failure to perform under the agreement); see also City & Cnty of Honolulu v. Kam, 48 Haw. 349, 402 P.2d 683, 687 (Haw. 1965) (concluding that 30 days was a reasonable time to pay the agreed amount in the absence of a "time for performance" provision in the "compromise agreement"); Hanabusa v. Lingle, 119 Haw. 341, 352 , 198 P.3d 604 (2008) (holding that a ten month delay was "an unreasonable period of time[.]"). Thus, each and every condition, including the condition to dedicate the roads, is implicitly put on a clock of"time is of the essence", or, at the very least, upon reasonable time. Dedication was to be timely, and the clock of such timeliness began to tick at the moment at which "any portion of the subject property" received final subdivision approval, the first of which was received in 1999. See Exhibit "E". Because the Connector Roads and Makai Halekii Extension were to be built in 1999, and because the dedication was intended and contracted to be done in a "timely fashion", a delay of twenty-four years is a clear breach; flying in the face of both the standard of"time is of the essence" as well as "reasonable time". As another mark against the "timely" dedication of the Makai Halekii Extension and Connector Road is the fact that the Mauka Halekii Extension was dedicated in 2012. Predicated 10 779505 on the same condition as the Makai Halekii Extension, the Mauka Halekii Extension was dedicated back in 2012, an additional eleven years of delay to dedicate the Halekii Extension's other half cannot be viewed as timely. In that same vein (perhaps to a heightened degree), the Connector Road was to be "provided" all the way back in 1999; to date it has not been provided, clearly breaching the Development Agreement's requirement to complete conditions in a"timely fashion". Thus, regardless of the requirement to design,build and dedicate the Connector Road and Makai Halekii Extension upon first final subdivision approval, the failure to dedicate the Connector Road and Makai Halekii Extension in a timely fashion was a breach of the Operating Agreement and Incorporated Ordinances. B. Declaratory Judgment Should Be Issued in Plaintiff's Favor for Oceanside's Failure to timely Design, Build, and Dedicate the Required Roadways. Plaintiff has a concrete legal interest at play here as a third party beneficiary to the Development Agreement as well as the neighboring property owner to the south of the Development, and, having been expressly promised "future connections between the subject property and the adjacent properties to the north and south", has therefore, since 1999, been deprived (as explained above) of lawful public access upon the Connector Road and Makai Halekii Extension. Plaintiff rightfully believes that Oceanside has breached their obligations under the Development Agreement and has informed County on numerous occasions of such breach. See Coupe Dec. The facts above have been admitted to by both Oceanside and County Defendant (i.e. the failure to design, build, and dedicate the Required Roads to County Standards) and only legal issues, in which Declaratory Judgment can readily resolve, are at play in this facet of the case. Declaratory judgment upon the breach of the Development Agreement and Incorporated Ordinances, as has been established above, will serve to quell the controversies herein, if not entirely settle the dispute outright. Thus, Declaratory judgment should be issued in Plaintiff's favor, determining that Oceanside's failure to timely design, build and dedicate the Connector Roads and Makai Halekii Extension was a breach of the Development Agreement and Incorporated Ordinances. 11 779505 C. Mandatory Injunction Should be Issued Compelling the County to Declare Material Breach of the Development Agreement by Oceanside and Begin the Cure Period Prescribed under the Hawaii County Code. Here, all relevant facts have been admitted and, as detailed above, the law favors the Plaintiff. Thus, a mandatory injunction should be issued provided that all elements for a permanent injunction have been satisfied, which they have been here. The three factors to consider for issuing permanent injunction are as follows: "(1) whether the plaintiff has prevailed on the merits; (2) whether the balance of irreparable damage favors the issuance of a permanent injunction; and (3) whether the public interest supports granting such an injunction." Off. of Hawaiian Aff. v. Hous. & Comm. Dev. Corp. of Haw., 117 Hawai'i 174, 212, 177 P.3d 884, 922 (2008), rev'd on other grounds by Hawaii v. Off. of Hawaiian Aff., 556 U.S. 163, 129 S. Ct. 1436, 173 L. Ed. 2d 333 (2009)). 1. Once it is Determined that Oceanside has Materially Breached the Development Agreement, Plaintiff Prevailed on the Merits. First, if the Court accepts and acknowledges that Oceanside is in breach of the Development Agreement and Incorporated Ordinances, Plaintiff has prevailed on the relevant issues. Once again, Plaintiff is likely to succeed on the merits here as the facts are not in contention and the law clearly favors the moving party. Oceanside agreed to design, build, and dedicate the Required Public Roads, and Oceanside has clearly (and admittedly) failed to design, build and dedicate the Connector Road and Makai Halekii Extension. Such failure is a material breach of the Development Agreement. For twenty-four years, County has failed to address such breach and should be compelled to do so. 2. Balance of Irreparable Damage Favors the Issuance of Permanent Injunction. In the 7's Enters v. Rosario, the Supreme Court of Hawaii held: An injury is irreparable, within the law of injunctions, where it is of such a character that a fair and reasonable redress may not be had in a court of law, so that to refuse the injunction would be a denial of justice; where, in other words, from the nature of the act, or from the circumstances surrounding the person injured, or from the financial condition of the person committing it, it cannot be readily, adequately, and completely compensated for with money. The term "irreparable damage" does not have reference to the amount of damage caused, but rather to the difficulty of measuring the amount of damages inflicted. 111 Hawai`i 484, 485, 143 P.3d 23, 24 (2006) (citing Klausmeyer v. Makaha Valley Farms, Ltd., 41 Haw. 287, 339-40 (1956)). "'To have a property interest in a benefit, a person clearly must 12 779505 have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it."' Sandy Beach Defense Fund v. City Council of Honolulu, 70 Haw. 361, 377, 773 P.2d 250, 260 (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548, (1972)). Generally, deprivation of a unique interest, such as that in real property, constitutes irreparable harm sufficient for injunctive relief. See Lat v. Woo, 2022 Haw. App. LEXIS 277, *13-14 (2022) (citing O'Hagan v. United States, 86 F.3d 776, 783 (8th Cir. 1996) (holding forced sale of interest in real property would result in irreparable harm where real property is unique and monetary damages are inadequate compensation); Bean v. Independent American Say. Ass'n, 838 F.2d 739, 743 (5th Cir. 1988) (holding that interests in real property are presumed unique and there is no adequate remedy to substitute for injunctive relief)). Here, Plaintiffs deprivation of access to the Connector Road and Makai Halekii Extension, for over 24-years, is a unique harm to property interest which only injunctive relief can adequately remedy. Plaintiff been denied north-south access across Hokulia, a right that was expressly allotted to it under the Development Agreement, and not just a unilateral expectation. In addition, Plaintiffs ease of access to the public beach park at the west end of Hokulia has been greatly diminished. Deprivation of such property interest is near to impossible to measure. Plaintiff, therefore, stands to suffer vast and immeasurable, irreparable harm. In stark comparison, Oceanside's "harm" is that their flagrant breach of the Development Agreement and Incorporated Ordinances is called out, and that they must adhere to their end of a bargained for exchange. Oceanside has for, almost a quarter century, utilized the land use freeze in order to both sell "private" community lots and dubiously pocket cost differentials between construction of the Connector Road and Makai Halekii Extension as intended as compared to the current substandard conditions. Compelling Oceanside to pay the bill that is due cannot be viewed as any level of "harm" warranting concern here. Further, County will equally be unharmed by obtaining unfettered public access for which it had bargained for almost a century ago, promised for the public's benefit. County cannot be deemed"harmed"by consideration they sought out as warranting a 30-year zoning freeze. Thus, the balance of irreparable harm weighs baldly in the Plaintiffs favor. The breach of the Development Agreement and Incorporated Ordinances detailed above should be immediately declared by this Court to stave off further irreparable harm, through deprivation of access, to Plaintiff. 13 779505 3. Public Interest Supports the Grant of a Permanent Injunction. Finally, it is in the public's interest for this Court to compel the County (through whatever means proper and available) to declare that Oceanside has materially breached the Development Agreement. This is twofold. First, innate in a development agreement is a public interest. After all, Haw. Rev. Stat. Section 30-2 (governing the "Purpose" of a development agreement) states that the very purpose of a development agreement is to ensure "[t]hat [a] project will be prosecuted and completed in a timely manner and that the public interest will be protected." If the Oceanside is allowed to shirk its responsibilities under the Development Agreement and Incorporated Ordinances, this purpose is left entirely neglected; the public interest eschewed. Second, if Oceanside is allowed to breach the Development Agreement and Incorporated Ordinances for nearly twenty-four years without any ramifications or reprimand, the County will, in essence, set a disastrous precedent for all other developers who enter development agreements with the County. If developers are not made to strictly follow the terms of their end the bargained for exchange, it would be fiscally irresponsible not to reap the upfront benefit of zoning freeze and hope that the County forget or forgive their later noncompliance. In essence, the development agreement as a tool for public good will be left toothless. When the County entered the Development Agreement they had been promised certain material considerations, for the benefit of its public, a lapse of time and judgment should not exculpate Oceanside from their responsibility to provide such consideration. Thus, it is clearly in the public's interest for this Court to set an example and compel the County of Hawaii, through mandatory injunction, to enforce the Development. The public interest can only be protected through the strict prosecution of any breach. V. CONCLUSION Based upon the foregoing, Plaintiff respectfully request that the Court enter partial summary judgment on Count I and II of the Complaint, as they pertain to the Connector Road and Makai Halekii Extension, in favor against Oceanside and County Defendant finding that there was a material breach in the Development Agreement and Incorporated Ordinances through failure to design, build, and dedicate the Connector Roads and Makai Halekii Extension, and humbly requests that this Court issue declaratory judgment determining such, as well as issue a 14 779505 mandatory injunction compelling the County to declare such material breach and begin the cure period prescribed under Hawaii County Code Section 30-6. DATED: Honolulu, Hawaii, June 23, 2023. DAMON KEY LEONG KUPCHAK HASTERT /s/Toren K Yamamoto KENNETH R. KUPCHAK TOREN K. YAMAMOTO JONATHAN N. MARCHUK Attorneys for Plaintiff C & J FAMILY PARTNERSHIP 15 779505 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII Electronically Filed THIRD CIRCUIT C & J COUPE FAMILY LIMITED ) CIVIL NO. 3CCV-23-00001CV-23-0000123 PARTNERSHIP, ) 23-JUN-2023 ) 08:24 AM Plaintiff, ) DECLARATION OF CHAID1cE$9 DEC ) COUPE vs. ) ) COUNTY OF HAWAII; COUNTY OF ) HAWAII, PLANNING DEPARTMENT; ) ZENDO KERN, IN HIS OFFICIAL ) CAPACITY AS DIRECTOR OF THE ) COUNTY OF HAWAII, PLANNING ) DEPARTMENT; 1250 OCEANSIDE LLC; ) JOHN DOES 1-10; JANE DOES 1-10; DOE ) CORPORATIONS 1-10; DOE ) PARTNERSHIPS 1-10; and DOE ENTITIES) 1-10, ) ) Defendants. ) ) DECLARATION OF CHARLES COUPE I, CHARLES COUPE, declare under penalty of law as follows: 1. I am a general partner of PLAINTIFF C & J COUPE FAMILY LIMITED PARTNERHSIP. 2. I make this declaration based upon personal knowledge and am competent to testify to the matters discussed herein. 3. Since our initial meeting with Mike Vitousek of Hokulia in late April of 2021, I have spent the better part of two-years researching the files of the Hokulia Development. These files reside with the County of Hawaii, therefore, the effort was complicated by the fact that all of the files are located in the County offices in Hilo, Hawaii. We were also forced to deal with 1 the problems of the pandemic rules and regulations that were still in effect. The chronology of our efforts is as follows. 4. On April 22, 2021, at the invitation of Mr. Mike Vitousek, Land Manager for 1250 Oceanside LLC ("Oceanside"), we met for lunch at the Hokulia Golf Club. At that meeting, Mr. Vitousek presented me and my son, Matt Coupe, with a single page paper which outlined Oceanside's proposed amendment change to Ordinance 96-8 conditions L and M. The proposal outlined the deletion of Oceanside's requirement to construct the roadways set forth in Exhibit B of the document and dedicate them to the County of Hawaii. In its place, Oceanside would provide a nonexclusive easement over the private roads of Oceanside. This condition was contingent upon our requirement to provide Oceanside with a similar nonexclusive easement on our property. Under this proposal, Oceanside would not be obligated to provide us with the easement until such time as we provided them with the easement on our property. After reading the proposed changes, I informed Mr. Vitousek that we would not agree to such a change and that we would seek assessment from our attorney and probably commence a review of the County's files. At no time during the meeting did Mr. Vitousek inform us of their attempt to apply for an amendment with the County on January 23, 2020, or the reply letter from the Planning Director on February 11, 2020. 5. On April 23, 2021, we begin a review of the County of Hawaii files regarding the Hokulia Development that covered the time period from 1995 through 2023. This effort took from May 2021 through December 2021. It was complicated by the fact that the files had to be sent over to Kona from Hilo. Also, a large number of files could not be identified by project name and had to be identified by tax map key numbers which required us to research the item requested by tax map key. Obtaining the pertinent information was also made difficult by the fact that we were 2 required to view the voluminous files standing up in the lobby of the Planning Department. Somehow, it was not possible for the County to provide us with a chair and a small table to carry out our review. 6. In our review, amongst other documents, the January 23, 2020, letter concerning Oceanside's amendment request, and January 14, 2009, Annual Report provided to the County by Oceanside and January 26, 2009, Acknowledgement of Annual Report County Provided to Oceanside. 7. On August 30, 2021, I sent an email to the Planning Director requesting a meeting to discuss the proposed changes that Oceanside had presented us on April 22, 2021. I told him that the proposal was unacceptable to us and that we would like to meet with him to discuss our position before writing a letter to County to discuss our review of the County's files. 8. On October 14, 2021, I met with County Planning Director, Mr. Zendo Kern and Deputy Director Jeffrey Darrow. The meeting lasted about 45 minutes. I outlined my opposition to the proposed change Oceanside was advocating because it would foreclose on the County's option to provide for long-range roadway needs that the engineers had built into Ordinance 96-8. Moreover, the County's General Plan and the Leeward Community Plan also had incorporated these public roadways into their programs. At the end of the meeting Director Kern asked me, "What do you want?!". I told him we wanted Oceanside to complete the roads in dedicable form and to dedicate them to the County. I also told him to remove the illegal Guard House at the entrance of the Hokulia project. 9. Having received no response from our meeting two months prior, we sent a letter to Planning Director Kern on December 14, 2021, which outlined the concerns we had set forth in our October 14, 2021, meeting. 3 10. On June 13, 2022, my son and I met over zoom with C & J Coupe's counsel, Mr. Kupchak, Planning Director Kern, Deputy Director Darrow, and Corporation Counsel Jeanne Campbell to discuss our request that County exercise its authority to compel Oceanside to construct the roadways set forth in Exhibit B of Ordinance 96-8 and dedicate them to the County of Hawaii. We also requested the removal of the guard house that is in the middle of the future public roadway. The meeting did not produce any solutions from County. Mr.Kupchak did request that County produce copies of the Annual Progress Reports that Oceanside is required to submit to the County annually. 11. I certify that a true copy of the January 23, 2020, letter concerning Oceanside's amendment request is attached hereto as Exhibit"A". 12. I certify that a true copy of 14, 2009, Annual Report provided to the County by Oceanside and January 26, 2009, Acknowledgement of Annual Report County Provided to Oceanside, including subdivision approval, is attached hereto as Exhibit"E". DATED: Honolulu, Hawaii, e 22, 2023. L-C JARL`ES COUPE / 4 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII Electronically Filed THIRD CIRCUIT C & J COUPE FAMILY LIMITED ) CIVIL NO. 3CCV-23-00001gcCV-23-0000123 PARTNERSHIP, ) 23-JUN-2023 ) DECLARATION OF TORI®&: 4 AM Plaintiff, ) YAMAMOTO Dkt. 70 DEC ) vs. ) ) COUNTY OF HAWAII; COUNTY OF ) HAWAII, PLANNING DEPARTMENT; ) ZENDO KERN, IN HIS OFFICIAL ) CAPACITY AS DIRECTOR OF THE ) COUNTY OF HAWAII, PLANNING ) DEPARTMENT; 1250 OCEANSIDE LLC; ) JOHN DOES 1-10; JANE DOES 1-10; DOE ) CORPORATIONS 1-10; DOE ) PARTNERSHIPS 1-10; and DOE ENTITIES) 1-10, ) ) Defendants. ) ) DECLARATION OF TOREN K. YAMAMOTO I, TOREN K. YAMAMOTO,hereby declare as follows: 1. I am an attorney at the law firm of Damon Key Leong Kupchak Hastert, counsel of record for Plaintiff C & J Coupe Family Limited Partnership in the above-captioned matter, and am duly licensed to practice in all courts in the State of Hawaii. 2. I make this declaration based on my personal knowledge, unless otherwise indicated, and am competent to testify to the matters contained herein. 3. Attached hereto as Exhibit "B" is a true and correct copy of Oceanside's request to amend Condition M of Ordinance No 96-8, dated March 3, 2023, which was provided to us on April 17, 2023 via Email from Christian Kay of the County of Hawaii Planning Department. 779505 4. Attached hereto as Exhibit "C" is a true and correct copy of Ordinances No. 96-8 and No 96-7, County Defendant's Motion to Dismiss Complaint [Dkt. 21] as Exhibit "2" and Exhibit "1"respectively, but for convenience have been attached herein as Exhibit"C". 5. Attached hereto as Exhibit "D" is a true and correct copy of the Development Agreement entered into between the Defendants and recorded in the State of Hawaii Bureau of Conveyances on April 30, 1998 submitted in County Defendant's Motion to Dismiss Complaint [Dkt. 21] as Exhibit A and in Oceanside's Motion to Dismiss Complaint [Dkt. 15] as Exhibit 3, but for convenience has been attached herein as Exhibit"D". I do declare under penalty of law that the foregoing is true and correct. Executed this 22 day of June, 2023 at Honolulu, Hawai`i. /s/Toren K Yamamoto TOREN K. YAMAMOTO 2 779505 Electronically Filed THIRD CIRCUIT 3CCV-23-0000123 23-JUN-2023 08:24 AM Dkt. 71 EXH Exhibit A CARLSMITH BALL LLP _Oo A LIVIITED LIABILITY LAW PARTNERSHIP GNAL 121 WAIANUENUE AvE.NuE P.O.Box 686 HILO,HAWAII 96721-0686 • • TELEPHONE 808.935.6644 FAX 808.935.7975 W W W.CARLSMTTH.COM SLIMC CARLSMITH.COM r"..) 0 ry January 23, 2020 VIA HAND DELIVERY • Michael Yee Director Planning Department -- 101 Pauahi Street, Suite 7 - Hilo, Hawaii 96720 - r, • a Attn: Jeff Darrow _ Re: Request for an amendment to Condition M of Ordinance No. 96-8 Original Applicant: 1250 Oceanside Partners, L.P. Successor Applicant: 1250 Oceanside, LLC Tax Map Key Nos.: (3) 8-1-004:070 (Roads 11-A-1 & 12-A) and 8-1-030:055 Road R-10-A) formerly (3) 8-1-004:003 (collectively the "Property") Dear Mr. Yee: As you are aware, our firm represents 1250 Oceanside, LLC ("Oceanside"), the predecessor-in-interest to 1250 Oceanside Partners, L.P. ("1250 L.P."), and the current developer of the master planned Hokuli'a project (the "Project"). The relevant portion of the Project is subject to Change of Zone Ordinance No. 96-8 ("Ord. 96-8"), which was approved by the County of Hawaii on January 15, 1996. Ord. 96-8 rezoned the upper or mauka half of the Project from Agricultural (A-5a) to Agricultural (A-la)' (See "Exhibit 1" - Ord. 96-8). Conditions L(4)2 and L(5)3 of Ord. 96-8 required that 1250 complete the construction of a The Project is also subject to Change of Zone Ordinance No. 96-7 ("Ord.96-7"), which was also approved by the County of Hawaii on January 15, 1996,and rezoned the makai portion of the Project from A-5a to A-la. 2 Conditions L(4) and L(5)of Ord. 96-8 state the following: (L) Roadway improvements and access(es) to the subject property, including all plans and construction,shall meet with the approval of the Department of Public Works. Prior to the issuance of Final Subdivision Approval for any portion of the subject property, the applicant shall: (4)construct the extension of Haleki'i Street through the subject property as generally reflected in Exhibit "B", which phasing of improvements shall be approved by the Department of Public Works. If,before the completion and opening of the entire Mamalahoa Highway Bypass, a portion of said bypass is completed and opened, and said portion provides a connection to a Haleki'i Street, a barricade or breakaway gate, m i4 • HONOLULU • HILO SCANNED 1 KONG • MAUI • Los A ELES 4817-9985-2974.S 051730-00047 Exhibit A JAN 8 2020 Michael Yee Page 2 mauka-makai extension of Haleki'i Street within the Project, which provides public access to the Hokuli'a shoreline park, in addition to an internal lateral roadway intended to provide connectivity to the adjacent lands that border the Project to the north and south (collectively referred to herein as the "Connector Roads"). The proposed alignment of the Connector Roads is generally reflected in "Exhibit B" to Ord. 96-8, which we have also attached as "Exhibit 2". "Exhibit B" to Ord. 96-8 depicts the current Project area, in addition to lands located to the north comprised of TMK: (3) 7-9-012:004, which are no longer a part of the Hokuli'a project. Condition M of Ord. 96-8 states that: "All roadway improvements stated in Condition L of this ordinance shall be dedicated to the County of Hawaii.i4 Please accept this letter as Oceanside's request that Condition M of Ord. 96-8 be amended to allow for the Connector Roads to remain in private ownership, based on the current as-built conditions. This request will not alter the public's current right of mauka-makai vehicular public access through the Project to the shoreline. The following discussion will summarize the background and reasons for Oceanside's requested amendment. I. Brief Project History. As you are probably aware, Oceanside's predecessor, 1250 L.P, first conceived the Hokuli'a project in the early 1990's, as a higher density master planned residential development consisting of approximately 1,540 lots, a 27-hole golf course, and a small 100-unit member's lodge. 1250 L.P. was eventually challenged in court on the merits of its proposed master plan, and following a few years of court proceedings, 1250 L.P. revised its master plan in response to concerns expressed by the community, ultimately proposing a lower density agriculturally- focused development, which also culminated with the elimination of the member's lodge from the Project's development plans. As a part of its revised master plan, 1250 L.P. committed to providing significant public improvements and community benefits, including the development of an approximately 140-acre shoreline park area, the expansion of the County's Kona Scenic Park, and construction and dedication of an approximately 5-mile segment of the 2-lane Mamalahoa Bypass Highway (nka Ali'i Highway) between Keauhou and Captain Cook. 1250 L.P. submitted the necessary entitlement permits to the County to implement the revised master plan consisting of 730 agricultural lots, which culminated with the adoption Ord. 96-8. Following the adoption of Ord. 96-8, Oceanside and its predecessor secured the approval of numerous other entitlement permits allowing the development Project to proceed forward. requirements of the Department of Public Works,shall be installed by the applicant as a part of the required Haleki'i Street Improvements. The purpose of this condition is to prevent the use of Haleki'i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and a portion of the Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook has been completed and opened for general public use;and (5)provide roadway stub-outs,generally shown in Exhibit"B",to provide future connections between the subject property, and the adjacent properties to the north and south; provided that such stub-outs shall be constructed in accordance with the construction phasing as approved by the Department of Public Works. 'In contrast, and although a portion of the Connector Roads (makai portion of Haleki'i Street) is covered by Ord. 96-7,that Ordinance does not contain a condition requiring dedication of the Connector Roads to the County so no amendment to Ord.96-7 is required. Exhibit A Michael Yee Page 3 Oceanside has also taken further steps recently to reduce the scale and intensity of the Hokuli'a project by reducing the overall lots developed in the Project.. Shortly following the adoption of the Ord. 96-8, 1250 L.P. submitted construction plans to the County for the Phase 1 subdivision infrastructure improvements, which included the Connector Roads. The Connector Roads were constructed in 1999, based on a non-dedicable roadway design approved by the Department of Public Works at the time, and these improvements were completed a short time later. In the years that followed the approval of Ord. 96-8, 1250 L.P. found itself back in Court defending against challenges that the Project did not comply with certain State and County land use laws (Civil No. 00-1-192K or otherwise referred to herein as the "Kelly Litigation"), in addition to litigation relating to bonds that had been issued to assure completion of project infrastructure. During this period, the Project's lender assumed control of the Hokuli'a project. Due to the prolonged shutdown of the Project as a result of the Kelly Litigation, 1250 L.P.'s financial situation was extremely fragile when the Courts finally lifted the development injunction in March 2006. As a result, 1250 L.P. was unable to make a required loan payment to its lender in late 2007, which resulted in a default on the loan. Following the default, development activities could only proceed with lender authorization and funding. Our client, Oceanside, acquired the loans in late 2012, however, 1250 L.P. needed to proceed with a petition under Chapter 11 of the Bankruptcy Code in early 2013 to restructure secured and unsecured debt. During this time, 1250 L.P. completed the construction of the easterly/mauka portion of the Haleki'i Street extension (mauka of the Ali'i Highway) and dedicated it to the County in 2012. Similar to the Connector Roads, the Haleki'i Street mauka extension was not built to County dedicable standards, however, the County accepted this roadway segment for dedication, and now this mauka segment of Haleki'i Street is in the County's roadway inventory. 1250 L.P. emerged from bankruptcy on July 1, 2014, with our client (Oceanside) in control of the Project. Since emerging from bankruptcy, Oceanside has paid the County $20 million dollars to assist the County with its completion of the Ali'i Highway, which is now open and enjoyed by the public. Oceanside has also made tremendous strides towards revitalizing the once dormant Project by completing necessary Project elements such as the Phase 1 Wastewater Treatment Plant, additional infrastructure improvements in subdivision Phases 1 and 2, and the Archaeological Preservation Plan for the Phase 1 and Phase 2 areas of the public Hokuli'a Shoreline Park. The public also has full enjoyment of the recently completed rehabilitation of the Shoreline Park in Phases 1 and 2, which commenced following the approval of the Archaeological Preservation Plan by the State Historic Preservation Division. Oceanside has also completed extensive trail and rest area improvements within Phases 1 and 2, while simultaneously obtaining the necessary permitting for a new public restroom facility with 28 parking stalls. Oceanside also recently dedicated to the County a 2.273-acre parcel abutting the north side of the Kona Scenic Park, which we understand the County will use to provide much needed off-street parking relief for the public. Oceanside is also currently processing the necessary permits and plans to develop an additional source of potable water to ensure continued water availability for the entire Project, while also helping to improve the County's public water system in the region by making additional water available for the public, because of this new source. Since Oceanside and its predecessors have completed numerous public benefit projects though the development of Hokuli'a, as of August 23, 2012, the Planning Department confirmed Exhibit A 4817-9985-2974.8.051730-00047 Michael Yee Page 4 that Oceanside had a total balance of fair share credits in the amount of$8,641,127.12 (See attached "Exhibit 3"). II. Amendment to Condition M of Ord. 96-8. 1250 L.P. constructed the Connector Roads based on road details approved by the Department of Public Works. The Connector Roads consisted of 20-foot wide paved driving surfaces with landscaped shoulders and swales, all contained within 50 to 60-foot wide right-of- ways. These Connector Roads were platted during the Phase 1 subdivision process, and the Planning Department ultimately approved the Phase 1 subdivision in 1999. Oceanside's predecessor, 1250 L.P., also sought and obtained approval of variances in 2011 to allow the retention of existing, and the construction of new private 20-foot paved roadways within 50 and 60-foot wide rights-of-way, without having to pave the shoulders. 1250 L.P. sought these variances to minimize the potential for excessive grading for environmental reasons, as they were concerned that the grading of the steeply sloping Property coupled with a full pavement of the right-of-way could increase the potential for storm water runoff. This potential for storm water runoff was demonstrated when the Project was put on hold by the State in late 2000, to allow the remediation of sediment runoff into the near shore waters fronting Hokuli'a caused by a few severe storm events. 1250 L.P. also indicated in their submittal to the County that all of the existing and planned roads within the Project were intended to be privately owned and maintained by the Hokuli'a Homeowners Association ("HCA"). By way of letter dated January 31, 2011, the Planning Department approved VAR-10- 027, which granted variances from Hawaii County Code, Chapter 23, Subdivisions, Article 6, Division 2, Improvements Required, Section 23-86, Requirements for dedicable streets, and Section 23-95, Right-of-way improvement. The approved variances allowed all roads within the Project to be constructed to a non-dedicable standard with grassed shoulders and swales. The Planning Department granted a further amendment to VAR-10-027 on January 13, 2015 to allow lava rock treatments along certain areas of the roadway shoulders, so Oceanside could blend the roadways into the natural design theme for the road corridors. These Planning Department approved variances for grassed or permeable-type swales allowed 1250 L.P. /Oceanside to adequately capture additional surface runoff during rain events, while also making the roadways more visually compatible with the surrounding area and existing roadways. Thus, these roadways will not need to be improved to County-dedicable standards in the future. The primary purpose of this request is to allow the Connector Roads to remain in private ownership, based on the current "as-built" construction, without improving the roadways to a County-dedicable standard. Although Condition M of Ord. 96-8 requires that "[alll roadway improvements stated in Condition L of[the] ordinance shall be dedicated to the County of Hawaii", the condition does not require that the roadway improvements described in Condition L of Ord. 96-8 be designed or constructed to the County's dedicable standards, nor does the subject condition establish a timeframe by which the improvements need to be dedicated to the County. Oceanside and its predecessors have spent a considerable amount of resources to construct roadways in their present state, based on prior approvals issued by the County. Hokuli'a is also a naturally beautiful place and the alternate permeable treatment of the shoulders and swales along all the Project roadway corridors have only helped to control surface runoff, while also enhancing the overall appearance of Hokuli'a, consistent with the community's earlier desire for Exhibit A • Michael Yee Page 5 a lower density, less urban looking, agriculturally-focused development. Oceanside also strongly believes that it is reasonable to keep the Connector Roads in private ownership, as they have been in private ownership since 1999, and public access over the Connector Roads to the Shoreline Park has always been made available to the public. The public's right to access the Shoreline Park over the private Haleki'i Street makai extension was memorialized on September 16, 1999, through the execution and recordation of a Grant of Easement and Covenants executed by the County and 1250 L.P. (See attached "Exhibit 4"). The continued private ownership of the Connector Roads would not interfere with the public's use of the Shoreline Park. The added benefit of keeping the roads in private ownership is that the County is absolved from the responsibility of maintenance and the liability for these roadway improvements. Assuming approval of this request, Oceanside intends to convey the Connector Roads to the HCA, and the HCA has agreed to accept ownership, maintenance, liability, and control of these roadways, in addition to the rest of the privately-owned Project roadways. The HCA will continue to be responsible for the construction maintenance, repair and replacement of the subject roads at no cost to the County of Hawaii. Oceanside has fully complied with the construction of all roadway improvements pursuant to Condition L of Ord. 96-8, as all of the subject roads are complete. As required by Condition L of Ord. 96-8, Oceanside and its predecessor completed and contributed significant funds towards the development of multiple public benefit roadway improvements for the community. These roadway improvements include, (1) the channelization and signalization of the Mamalahoa Highway-Haleki'i Street intersection, (2) the completion of the 2-lane Haleki'i Street extension between Mamalahoa Highway and Ali'i Highway, (3) the completion of the Ali'i Highway extension between Keauhou and Captain Cook, the latter section aided by a$20 million dollar payment made to the County to facilitate the completion of the roadway shortly after Oceanside exited bankruptcy, and (4) the completion the Connector Roads within the Project to stub-out to the adjacent properties, namely TMK No.: (3) 7-9-012:004 to the north (this parcel is no longer part of the Project), and TMK No.: (3) 8-1-007:045 to the south ("Adjacent Properties"), The completed Connector Roads have also provided the public with access to the Hokuli'a Shoreline Park. Oceanside constructed the 2-lane Ali'i Highway to County dedicable standards through the Project, which was intended to provide a major thoroughfare between Captain Cook and Keauhou. The completed Ali'i Highway, coupled with the mauka/makai connection to Mamalahoa Highway, was not only intended to serve the Hokuli'a project, but to also help divert the regional through traffic from Mamalahoa Highway, to alleviate congestion at peak traffic times in upper Kona. The current design of Ali'i Highway will also accommodate the future development of the vacant properties located mauka and makai of the roadway corridor. This portion of Ali'i Highway was designed as a primary arterial with a large 120-foot right-of-way to accommodate four (4) travel lanes should the County deem that two additional travel lanes are needed in the future. The future transportation link that will be created between the Connector Roads and the Adjacent Properties within the lower half of the Project is supportive of lower density agricultural uses desired by Oceanside, and the objectives of the Kona Community Development Exhibit A 4817-9985-2974.8.051730-00047 Michael Yee Page 6 Plan ("KCDP"). Development of the Adjacent Properties to the north and south will likely not be for urban type-uses in the foreseeable future. Policy LU-3.8 of the KCDP provides that rezoning of agriculturally zoned properties outside of the Urban and Rural Transit Oriented Development ("TOD") areas may only be appropriate to develop a small number of lots intended for transfer to family members. Regarding the Adjacent Properties, the property to the north of the Connector Roads is zoned Agricultural A-la(minimum lot size 1-acre), and the property to the south is zoned Agricultural A-5a(minimum lot size 5 acres), and both are outside of the Urban and Rural TOD areas and undeveloped at this time. Assuming that the Leeward Planning Commission and County Council agree to Oceanside's proposal to retain the Connector Roads in private ownership, Oceanside will commit to granting a perpetual, non-exclusive vehicular access easement in favor of the County of Hawaii over the Connector Roads to allow for access from the Adjacent Properties to Ali'i Highway, but only upon the precondition that the Adjacent Properties complete construction and open for public travel their respective roads within the Adjacent Properties connecting up to the Ali'i Highway, prior to connecting directly to the Hokuli'a Connector Roads. The rationale for this precondition is that the Adjacent Properties should each have to pay their own road construction costs of connecting their Adjacent Properties to Ali'i Highway. These costs shall be in addition to the pro rata cost share owed to Oceanside for contribution to the development of the Ali'i Highway5. Oceanside should not be required to allow access from the Adjacent Properties over the Connector Roads up to Ali'i Highway without the Adjacent Properties first being responsible to construct their own access roads to intersect with Ali'i Highway. Based on the reasons listed above, Oceanside respectfully requests approval of this request for the proposed deletion of original Condition M of Ord. 96-8, and substitution with revised Condition M as follows (additions are underlined; deletions are bracketed): Condition M. All roadway improvements stated in Condition L of this ordinance shall not be dedicated to the County of Hawaii[.), provided however, that upon completion of construction to standards acceptable to the Department of Public Works, and opening to public vehicular travel of the access roads and intersections with Ali'i Highway from within the adjacent parcels at TMK No. (3) 7-9-012:004 and TMK No. (3) 8-1-007:045, the owner of the Connector Roads TMK: (3) 8-1-004:070 and 8-1-030:055, and its successors and assigns, shall execute and record in the State of Hawai'i Bureau of Conveyances a perpetual, non-exclusive grant of vehicular access easement in a form mutually acceptable to the applicant and the Department of Public Works to provide public vehicular access rights to the County of Hawaii, over the privately owned roadways within the adjacent parcels located at TMK: (3) 8-1-004:070 and 8-1-030:055, as shown on "Exhibit C"." Finally, we have included with this request the following to complete our submittal: 1. 1 original and 20 copies of this request; 2. 1 original Fee Owner's Letter of Authorization; 5 Development Agreement dated April 20, 1998,executed by 1250 Oceanside Partners and the County of Hawaii, recorded in the State of Hawaii Bureau of Conveyances as Document No. 98-060529. Exhibit A Michael Yee Page 7 3. A condition compliance matrix describing Oceanside's compliance with the stated conditions of approval pursuant to Ord. 96-8; 4. Updated list of surrounding property owners within 1,000 feet from the Property boundary; and 5. Filing fee of$500 payable to the "County Director of Finance". If you have any questions regarding this request or if you require additional information, please feel free to contact me or my paralegal Jason Knable at 935-6644 at any time. Thank you for your assistance with this request. Sincerely, len S.C. Lim SSL/jkkl cc: 1250 Oceanside, LLC Exhibit A 4817-9985-2974.8.051730-00047 THIS DOCUMENT WAS PRINTED ON PAPER CONTAINING ULTRAVIOLET FIBERS AND A WATERMARK-HOLD UP TO A LIGHTTO VIEW Car!smith Ball LLP P.O. Box 656 Bank of Hawaii '402 MOLULU HCH CHECK NO. 155436 'Honolulu, Hawaii 96806 J56 HONOLULU,HAWAII • H13 Ph. (808) 523-2500 DATE ***Five hundred and 001100 DOLLARS*****************************************************************, 12/19/19 AMOUNT ***$500.00*** County Director of Finance VOID AFTER 90 DAYS PAY TO THE ORDER OF: "Do 1554360' 1: 1213010 281; 000 Iiii0OG S3 30 Payee: County Director of Finance Payee: 1377 Check#: 155436 Vendor Check Date: Dec 19,2019 Dice Date Invoice Number Nust ref ID -- 19/2019 Numbber 191219SSL Filing Fee for rezoning amendment--1250 Amount 19 Oceanside-Infrastructure(051730-00047) $500.00 -- — $500.00 Payee: County Director of Finance Vendor ID: 1377 Check#: 155436 Check Date: Dec 19,2019 voice Date Invoice Number Customer ID — — Number 2/19/2019 191219SSL Amount Filing Fee for rezoning amendment--1250 Oceanside-Infrastructure(051730-00047) $500.00 $500.00 , I Exhibit A Electronically Filed THIRD CIRCUIT 3CCV-23-0000123 23-JUN-2023 08:24 AM Dkt. 72 EXH EXHIBIT 4413 /, 1 OF 2 CARLSMITH BALL LLP A LIMITED LIABILITY LAW PARTNERSHIP 121 WAIANUENUE AVENUE P.O.Box 686 HILO,HAWAII 96721-0686 TELEPHONE 808.935.6644 FAX 808.935.7975 W W W.CARLSMITH.COM SLIM@CARLSMITH.COM March 3, 2023 VIA HAND DELIVERY Zendo Kern Director Planning Department 101 Pauahi Street, Suite 7 Hilo, Hawaii 96720 Re: Request for an amendment to Condition M of Ordinance No. 96-8 Original Applicant: 1250 Oceanside Partners, L.P. Successor Applicant: 1250 Oceanside, LLC Tax Map Key Nos.: (3) 8-1-004:070 (Roads 11-A-1 & 12-A) and 8-1-030:055 (Road R-10-A) [formerly (3) 8-1-004:003], collectively the "Connector Roadway" Dear Mr. Kern: Our firm represents 1250 Oceanside, LLC ("Oceanside"), the successor-in-interest to the original applicant 1250 Oceanside Partners, L.P. ("1250 L.P."), and the current developer of the master planned Hokuli'a project(the "Project"). Oceanside is not affiliated or related to the prior developer of the Project, 1250 L.P., as Oceanside acquired the rights to develop the Project in late 2012 through bankruptcy, which we will detail in the discussion below. A portion of the Hokuli'a project is subject to Ordinance No. 96-8 ("Ord. 96-8"), which was approved by the County of Hawaii on January 15, 1996, and rezoned the east/mauka portion of the Project areal from A-5a to A-1 a(See "Exhibit 1" - Location map showing the approximate areas rezoned by Ord. 96-8; "Exhibit 2" - Copy of Ord. No. 96-8). Oceanside currently controls a majority of the lands subject to Ord. 96-8, however, TMK: (3) 7-9-012:004, is no longer a part of the Hokuli'a project, and it is presently owned by Ackerman Ranch, Inc. (Ref. "Exhibit 1") As a part of the rezoning action for Hokuli'a, Oceanside was required to complete certain The west/makai lands of the Project are subject to Change of Zone Ordinance No. 96-7 ("Ord.96-7"),which was similarly approved by the County of Hawaii on January 15, 1996,and rezoned this portion of the Project from A-5a to A-l a. 4888-3477-2809.7.071732-00001 Exhibit B Planning Director Zendo Kern Page 2 roadways, which included the mauka-makai extension of Haleki'i Street through the lower half of the Project(which presently provides public access to the Hokuli'a shoreline park), in addition to an internal roadway parallel to Ali'i Drive that would stub-out to the adjoining lands bordering the Project to the north and south to provide connectivity(these roadways are collectively referred to herein as the "Connector Roadway"). (Ref "Exhibit 2" - Ord. 96-8, Conditions L(4) and L(5)respectively). The proposed alignment of the Connector Roadway is generally reflected in "Exhibit B" to Ord. 96-8. (Ref. "Exhibit 2" - Exhibit B). With respect to the Connector Roadway and the other roadways required by Ord. 96-8, Condition M states further that: "All roadway improvements stated in Condition L of this ordinance shall be dedicated to the County ofHawaii.i2 Oceanside has dedicated all of the roadways discussed Ord. 96-8, Condition L, with the exception of the Connector Roadway. This letter is intended to serve as Oceanside's formal request for an amendment to Condition M of Ord. 96-8, to allow the Connector Roadway to remain in private ownership,based on the current as-built conditions. This request to amend the dedication requirement for the Connector Roadway will not affect the public's current right of mauka-makai vehicular public access through the Project from Ali'i Drive to the Hokuli'a Shoreline Park. The following discussion will further expand on this issue, in addition to providing the history on the Project, and the background, context, and reasons for Oceanside's requested amendment to continue to keep the Connector Roadway in private ownership. We have also enclosed a copy of our latest 2022 Annual Progress Report dated August 10, 2022 as "Exhibit 3" describing our client's overall compliance with the conditions of all the Project entitlements. I. Brief Project History. Oceanside's predecessor, 1250 L.P, first conceived the Hokuli'a project in the early 1990's, as a higher density master planned residential development consisting of approximately 1,540 lots, a 27-hole golf course and a small 100-unit members' lodge. 1250 L.P. was eventually challenged in court on the merits of its proposed master plan, and following a few years of court proceedings, 1250 L.P. revised its master plan in response to concerns expressed by the community, ultimately proposing a lower density agriculturally-focused development, which also included the elimination of the member's lodge from the Project's development plans. As a part of its revised master plan, 1250 L.P. committed to providing significant public improvements and community benefits. These improvements included the development of an approximately 140-acre shoreline park, the expansion of the County's Kona Scenic Park, and the construction and dedication of an approximately 5-mile segment of the 2-lane Ali'i Drive between Keauhou and Captain Cook (which can be expanded by the County to 4 lanes in the 2 In contrast,and although a portion of the Connector Roadway_(makai portion of Haleki'i Street)is covered by Ord. 96-7,that Ordinance does not contain a condition requiring dedication of the Connector Roadway to the County and thus no amendment to Ord. 96-7 is required. 4888-3477-2809.7.071732-00001 Exhibit B Planning Director Zendo Kern Page 3 future). 1250 L.P. submitted the necessary entitlement applications to the County to implement the revised master plan consisting of 730 agricultural lots, which culminated with the adoption Ord. 96-8 (and Ord. 96-7 covering the makai lands of the Project). Following the adoption of Ord. 96-8, 1250 L.P. secured the approval of numerous other entitlement permits allowing the development Project to proceed. Shortly following the adoption of Ord. 96-8, 1250 L.P. submitted construction plans to the County for the Phase 1 subdivision infrastructure improvements, which included the Connector Roadway. The Connector Roadway was constructed in 1999, based on a non- dedicable roadway design approved by the County Department of Public Works, and allowed by variances approved by the Planning Department, as more fully described below. In the years that followed the approval of Ord. 96-8, 1250 L.P. ultimately defaulted on the loan to its lender in late 2007, and the control over the Project reverted to the lender. All development activities during this time were halted and could only proceed with lender authorization and funding. Our client, Oceanside, acquired these loans in late 2012. However, before Oceanside could restart development of the Project, 1250 L.P. needed to proceed with a petition under Chapter 11 of the Bankruptcy Code in early 2013 to restructure secured and unsecured debt. During this time, 1250 L.P. completed the construction of the easterly/mauka portion of the Haleki'i Street extension (mauka of the Ali'i Drive) and dedicated it to the County in 2012. Similar to the Connector Roadway, the Haleki'i Street mauka extension was not built to County dedicable standards, however, the County accepted this roadway segment for dedication, and now this mauka segment of Haleki'i Street is in the County's roadway inventory. 1250 L.P. emerged from bankruptcy on July 1, 2014, with our client (Oceanside) in control of the Project. Since emerging from bankruptcy, Oceanside has paid the County $20 million dollars to assist the County with its completion of the Ali'i Drive extension. Oceanside has made significant strides towards revitalizing the once dormant Project by completing necessary Project elements such as the Phase 1 Wastewater Treatment Plant, additional infrastructure improvements in subdivision Phases 1 and 2, various golf course related amenities, and all archaeological mitigation relating to the Project. The Archaeological and Cultural sites within the Project are actively maintained by the Hokuli'a Parks and Cultural Sites Association ("PCSA"), which is funded out of the Project's club membership dues. The Shoreline Park(which is being developed in 5 phases) has been opened to the public since 2002. Oceanside has completed the improvements required by the Comprehensive Public Access Plan for Phases 1 through 3, and improvements within Phase 4 are currently underway. The completed park improvements consist of planting naturally occurring native trees, shrubs, and ground covering vines, the improvement of the shoreline trail system with wood chips generated from the debris from the clearing of non-native invasive vegetation, the creation of public rest areas along the trail system complete with picnic tables and waste receptacles, and the installation of appropriate directional, hazard and cultural protocol signage. Oceanside has also simultaneously obtained permitting for a new public restroom facility with 28 parking stalls. The Shoreline Park is also maintained by the Hokuli'a PCSA. 4888-3477-2809.7.071732-00001 Exhibit B Planning Director Zendo Kern Page 4 On December 12, 2016, Oceanside also dedicated a 2.273-acre parcel abutting the north side of the Kona Scenic Park to the County, which we understand is being used to provide much needed off-street parking for the public3. In light of these public benefit contributions, as of August 23, 2012, the Planning Department confirmed that Oceanside had a total balance of fair share credits in the amount of $8,641,127.12 (See attached "Exhibit 4"). Oceanside has also taken further steps recently to reduce the scale and intensity of the Hokuli'a project by reducing the overall lots developed in the Project. II. Amendment to Condition M of Ord. Ord. 96-8. Oceanside and its predecessor have always remained steadfast in its commitment to provide roadway improvements to support the community, as required by Condition L of Ord. 96-8. The roadway improvements subject to Condition L of Ord. 96-8, are comprised of the following: 1. The channelization and signalization of the Mamalahoa Highway- Haleki'i Street intersection. (Ref. "Exhibit 2" - Ord. 96-8, Condition L(1). This intersection improvement was completed and in operation for the public on January 11, 1999. 2. The Ali'i Drive extension between Keauhou and Captain Cook. (Ref "Exhibit 2" - Ord. 96-8, Condition L(2) and L(3). The northern portion of this roadway was completed and dedicated to the County on November 20, 20124. The completion of the southern section of this roadway was aided by a$20 million dollar payment made to the County to facilitate the completion of the roadway shortly after Oceanside exited bankruptcy. 3. The 2-lane Haleki'i Street extension between Mamalahoa Highway and Ali'i Drive. (Ref "Exhibit 2- Ord. 96-8, Condition L(4). This roadway was completed and dedicated to the County on November 15, 20125. 4. The completion of the makai extension of Haleki'i Street to the makai/west of Ali'i Drive. (Ref. "Exhibit 2- Ord. 96-8, Condition L(4). This completed roadway provides the public with vehicular access to the Hokuli'a Shoreline Park. 5. The lateral roadway within the Project to stub-out to the adjacent properties to the north and south. (Ref. "Exhibit 2- Ord. 96-8, Condition L(5). This completed lateral roadway will provide connectivity to TMK No.: (3) 7-9-012:004 to the north (this parcel is no longer part of the Project, as discussed earlier), and TMK No.: (3) 8-1- 007:045 to the south (collectively the "Adjacent Properties"). The completion of these roadways represents a substantial financial investment made by Oceanside and its predecessor. 3 See Dedication Deed,recorded in the Bureau of Conveyances of the State of Hawaii("BOC")as Document No.A- 71390875 4 See Dedication Deed,recorded in the BOC as Document No.A-47440811. See Dedication Deed,recorded in the BOC as Document No.A-47141070. 4888-3477-2809.7.071732-00001 Exhibit B Planning Director Zendo Kern Page 5 As discussed earlier, the focus of this amendment request is to allow the Connector Roadway(the makai extension of Haleki'i Street, the internal lateral roadway and stub-outs) to remain in private ownership,based on the current "as-built" construction, without the requirement to improve the roadways to a County-dedicable standard. Although Condition M of Ord. 96-8 requires that "[a]ll roadway improvements stated in Condition L of this ordinance shall be dedicated to the County of Hawaii", this condition does not require that any of the roadway improvements described in Condition L of Ord. 96-8, including the Connector Roadway be designed or constructed to the County's dedicable standards, nor does the subject condition establish a timeframe by which the improvements need to be dedicated to the County. Since there was no requirement that the Connector Roadway be built to a dedicable standard, Oceanside and its predecessor, sought and obtained variances approved by the County Planning Department for the Connector Roadway, and completed construction of the Connector Roadway based on construction details approved by the County Department of Public Works. It is important to note again that the Connector Roadway was originally platted during the Phase 1 subdivision process, which was approved by the County in 1999, approximately 24 years ago. Following the approval of the Phase 1 subdivision, Oceanside's predecessor, 1250 L.P., sought approval of variances in 2011 to allow the retention of existing, and the construction of new private 20-foot wide paved roadways within 50 and 60-foot wide rights-of-way, without having to pave the shoulders of the roadways. 1250 L.P. pursued these variances to minimize the potential for excessive grading to minimize potential environmental hazards, and to address the concern that the grading of the steeply sloping lands within the Project, coupled with a full pavement of the right-of-way would increase the potential for storm water runoff. This potential for storm water runoff was demonstrated when the Project was put on hold by the State in late 2000, to allow the remediation of sediment runoff into the nearshore waters fronting Hokuli'a caused by a few severe storm events. 1250 L.P. also indicated in their submittal to the County during this variance process that all of the existing and planned roads within the Project were intended to be privately owned and maintained by the Hokuli'a Homeowners Association ("HCA"). By way of letter dated January 31, 2011, the Planning Department approved VAR-10- 027, which granted variances from Hawaii County Code, Chapter 23, Subdivisions, Article 6, Division 2, Improvements Required, Section 23-86, Requirements for dedicable streets, and Section 23-95, Right-of-way improvement. The approved variances allowed all roads within the Project to be constructed to a non-dedicable standard with grassed shoulders and swales. The Planning Department granted a further amendment to VAR-10-027 on January 13, 2015 to allow lava rock treatments along certain areas of the roadway shoulders, so Oceanside could blend the roadways into the natural design theme for the road corridors. These Planning Department approved variances for grassed or permeable-type swales allowed 1250 L.P. / Oceanside to adequately capture additional surface runoff during rain events, while also making the roadways more visually compatible with the surrounding area and existing roadways. Thus, these roadways will not need to be improved to County-dedicable standards in the future. Presently, the Connector Roadway consists of 20-foot wide paved driving surfaces with 4888-3477-2809.7.071732-00001 Exhibit B Planning Director Zendo Kern Page 6 landscaped shoulders and swales, contained within 50 to 60-foot wide right-of-ways. Oceanside and its predecessors have made a considerable investment to construct the Connector Roadway in its present state, based on prior approvals issued by the County. Hokuli'a is a naturally beautiful place, and these approved alternate permeable surfaces for the shoulders and swales along all the Project roadway corridors have only helped to control surface runoff. These improvements enhance the overall appearance of Hokuli'a, consistent with the community's earlier desire for a lower density, less urban looking, agriculturally-focused development, which is also consistent with the vision of the Kona Community Development Plan ("KDCP"). Oceanside also strongly believes that it is reasonable to keep the Connector Roadway in private ownership, as it has been in private ownership since 1999. Although the Connector Roadway is currently private, public access over the Connector Roadway to the Shoreline Park has always been open to the public and will remain open in perpetuity. The public's right to access the Shoreline Park over the makai extension of Haleki'i Street was memorialized on September 16, 1999, through the execution and recordation of a Grant of Easement and Covenants executed by the County and 1250 L.P. (See attached "Exhibit 5"). The continued private ownership of the Connector Roadway will not interfere with the public's use of the Shoreline Park. One of the added benefits of keeping the Connector Roadway in private ownership is that the County is absolved from the responsibility of maintenance and the liability for these roadway improvements. Assuming approval of this request, Oceanside intends to convey the Connector Roadway to the HCA, and the HCA has agreed to accept ownership, maintenance, liability, and control of these roadways, in addition to the rest of the privately-owned Project roadways. The HCA will continue to be responsible for the construction, maintenance, repair and replacement of the subject roads at no cost to the County of Hawaii. The future transportation link that will be created between the Connector Roadway and the Adjacent Properties within the lower half of the Project is supportive of the lower density agricultural uses desired by Oceanside, and the objectives of the KCDP and the community. Development of the Adjacent Properties to the north and south will likely not be for urban type- uses in the foreseeable future, unless there is a seismic shift in County's and the community's current desire for less urban development of agricultural land outside of the Kona urban core. As discussed in Policy LU-3.8 of the KCDP, the rezoning of agriculturally zoned properties outside of the Urban and Rural Transit Oriented Development("TOD") areas may only be appropriate to develop a small number of lots intended for transfer to family members. The Adjacent Property to the north of the Connector Roadway is zoned Agricultural A-la (minimum lot size 1-acre), and the Adjacent Property to the south is zoned Agricultural A-5a (minimum lot size 5 acres). Both of these properties are outside of the Urban and Rural TOD areas and remain undeveloped at this time. Furthermore, the KCDP does not discuss or identify the need for another County dedicable or concurrency roadway linking the lower half of the Project to the properties to the north and south,presumably due to the desire for less urban development on agricultural land. Assuming that the Leeward Planning Commission and County Council agree to support our client's proposal to retain the Connector Roadway in private ownership, Oceanside will 4888-3477-2809.7.071732-00001 Exhibit B Planning Director Zendo Kern Page 7 ensure connectivity between the Adjacent Properties through the granting of a perpetual, non- exclusive vehicular access easement in favor of the Adjacent Properties over the Connector Roadway,but only upon the precondition that the Adjacent Properties complete construction and open for public travel their respective roads within the Adjacent Properties connecting up to the Ali'i Drive,prior to connecting directly to the Hokuli'a Connector Roadway. The rationale for this precondition is that the Adjacent Properties should each have to pay their own road construction costs of connecting their Adjacent Properties to Ali'i Drive. These costs shall be in addition to the pro rata cost share owed to Oceanside for contribution to the development of the Ali'i Drive. Oceanside should not be required to allow access from the Adjacent Properties over the Connector Roadway up to Ali'i Drive without the Adjacent Properties first constructing their own access roads to intersect with Ali'i Drive. This request to defer access over the Connector Roadway until the Adjoining Properties develop their own connection to Ali'i Drive is reasonable. This request is rooted in the terms of the Development Agreement that Oceanside and the County executed on April 20, 1998, specifically Paragraph 16, which provided that Oceanside would only provide these future connections to the adjoining properties "in conjunction with the completion of subdivision improvements on adjacent Property"'. Nowhere was it ever contemplated that Oceanside's connection to Ali'i Drive would serve as the primary access point for all adjoining properties to Ali'i Drive. Oceanside has also discussed the proposed amendment to Condition M with the owners of the Adjoining Properties. The owner of the property along the northern boundary of the Connector Roadway(Ackerman Ranch, Inc.) agrees with and supports the intent of this amendment as proposed. As a result, Ackerman Ranch, Inc. provided Oceanside with the enclosed landowner authorization agreeing to allow Oceanside to file the proposed amendment to keep the Connector Roadway private. Alternatively, despite Oceanside's best efforts, Oceanside was unable to obtain the same support from the owner of the property along the southern boundary of the Connector Roadway (C & J Coupe Family LTD Partnership) ("Coupe"). Unfortunately, this is not the first time that Oceanside was unable to reach an agreement with Coupe. As many will recall, Oceanside was required by Ord. 96-8, Condition L(2) to acquire the lands needed to fund and construct an extension of Ali'i Drive between Keauhou and Captain Cook. While Oceanside successfully acquired a majority of the lands needed to construct the Ali'i Drive extension, Oceanside spent approximately 3 years in good faith trying to negotiate a sale of a few acres of Coupe land needed to complete the roadway alignment to Captain Cook. Negotiations reached an impasse in 2000, which ultimately forced Oceanside to defer to the County's condemnation action, as allowed under Ord. 96-8, Condition L(2). Coupe proceeded to file ligation against the County 6 Development Agreement dated April 20, 1998,executed by 1250 Oceanside Partners and the County of Hawaii, recorded in the State of Hawaii Bureau of Conveyances as Document No. 98-060529. (See attached "Exhibit 5") 'Paragraph 16 of the Development Agreement dated April 20, 1998 specifically states in whole the following: "Roadway Stub-outs. OCEANSIDE shall provide Roadway Stub-outs,generally shown in Exhibit"Q",to provide future connections between the Property and its adjacent north and south boundaries. Such Roadway Stub-outs shall be constructed in phases and in conjunction with the completion of subdivision improvements on adjacent Property." 4888-3477-2809.7.071732-00001 Exhibit B Planning Director Zendo Kern Page 8 arguing an unfair taking, while arguing among other things, that the lands sought by the County through condemnation was solely for Oceanside's benefit, rather for a genuine public purpose. Fortunately, the County's public purpose position prevailed in the lower courts, and after Coupe took its litigation all the way to the U.S. Supreme Court after failing in the lower courts, the U.S. Supreme Court denied the request to hear the case. The remaining southern segment of the Ali'i Drive extension through the former Coupe lands was finally opened to the public in 2016, some 19 years later after the Oceanside initially met with Coupe to negotiate the sale of the necessary roadway alignment. The net effect of Coupe's actions effectively resulted in delaying a much-needed secondary roadway intended to alleviate traffic along Mamalahoa Highway for the community for many years. Ironically, Coupe is now asserting that the current Oceanside request to amend Condition M of Ord. 96-8 to keep the interior Connector Roadway private is now somehow depriving the community of a community benefit, and negatively affects the community at large, which is factually untrue. Unfortunately, Coupe is again uninterested in coming to a reasonable compromise on this issue despite the overwhelming will of the community, as expressed through the KCDP, that less urban development on agricultural land is desirable. As such, the need for another County dedicable roadway that only serves to encourage more dense development is contrary to the objectives of the community. Based on the reasons listed above, Oceanside respectfully requests approval of this request for the proposed deletion of Condition M of Ord. 96-8, and substitution with the following revised Condition M (additions are underlined; deletions are bracketed): Condition M. All roadway improvements stated in Condition L of this ordinance shall be dedicated to the County of Hawaii[.], with the exception of the private Connector Roadway described in Condition L.5, specifically located at TMK: (3) 8-1-004: 070 (por.) and 8-1-030:055 (the "Connector Roadway"). The owner of the Connector Roadway, and its successors and assigns, shall execute and record in the State of Hawai'i Bureau of Conveyances ("Bureau") perpetual, non-exclusive grants of vehicular and pedestrian access easements (the "Grants") in a form acceptable to the owner, running with the land of the adjacent properties to the north and south of the Connector Roadway("Adjacent Properties"), as shown on "Exhibit C". The exercise of such vehicular and pedestrian access rights in favor of the adjacent properties shall be contingent upon completion of the following actions by the owners of each of the Adjacent Properties: 1) recordation in the Bureau of reciprocal grants of vehicular and pedestrian easements by the owners of the Adjacent Properties over their project roadways to the Connector Roadway benefitting the Hokuli'a Project, and 2) completion of construction and opening for vehicular travel of roadways within the Adjacent Properties connecting to intersections with Ali'i Drive." Finally, we have included with this request the following to complete our submittal: 1. Fee Owner's Letter of Authorization from Oceanside and the owner of TMK: (3) 7-9- 012:004 (Ackerman Ranch, Inc.); 4888-3477-2809.7.071732-00001 Exhibit B Planning Director Zendo Kern Page 9 2. List of surrounding property owners within 1,000 feet from the Project boundary, including all property within the boundaries of Ord. 96-8; and If you have any questions regarding this request or if you require additional information, please feel free to contact me or my paralegal Jason Knable at(808) 935-6644 at any time. Thank you for your assistance with this request. Sincerely, Steven S.C. Lim SSL/jkkl cc: 1250 Oceanside, LLC 4888-3477-2809.7.071732-00001 Exhibit B 1 fit ' V , vi ioi I igeriv li ... PSwl, . iiii O„ ,ob. 1110iiiks iii \ lik 'c';,,--------16101 ."141'.: slilliok 1 wo),\\\Ise..1011. ,,;'se.' \ , N " Pvis 16* A csv Ili or r 77aa ' r • _ __ 'rlp it+z!' 1) II r4ii i 3 ."42,4t ,„INA ilo.\ Ili, .--- It \ r' ' ,-;. A-%1.).- 4.4i, tik VIli le Illiii& 1Iit\IbdtAli'i Drive 11: y��'�ii: Haleki'i Street a � n 11 �pv�S\\M�'IH\ lb 1111 ,,I,11111-11111111111 .t'� 1 -----A 1II _.;yr / - �I.� d do kte. 3 / ,t; . , , Of s ' „,..).---- i Jk' V� ar � c I li. ,,, z, -ra"� rb � J t — _ y,-- \ i_ 14, , . ,,, .:'''''! i eg 4 f 111, J _ Hokulia Project Area Ackerman Ranch Lands Exhibit B Approx.Area Rezoned by Ord.96-8 "Exhibit 1" 1250 Oceanside COUNTY OF HAWAII STATE OF HAWAII BILL NO. 181 (Draft 6) ORDINANCE NO. 96 8 AN ORDINANCE AMENDING SECTION 25-87 (NORTH KONA ZONE MAP) AND SECTION 25-88 (SOUTH KONA ZONE MAP), ARTICLE 3, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE, AND ORDINANCE NO. 94-73, WHICH CLASSIFIED CERTAIN LANDS FROM AGRICULTURAL (A-5a) AND UNPLANNED (U)TO AGRICULTURAL (A-1a) AT HONUAINO 3RD AND 4TH, HOKUKANO 1ST AND 2ND, KANAUEUE 1ST AND 2ND, HALEKII, KEEKEE 1ST AND 2ND, ILIKAHI, KANAKAU 1ST AND 2ND, KALUKALU 1ST, 2ND AND 3RD AND ONOULI 1ST,NORTH AND SOUTH KONA, HAWAII, COVERED BY TAX MAP KEY 7-9-06:PORTION OF 1, 7-9-12:PORTIONS OF 3, 4, AND 5 AND 8-I-04:PORTION OF 3. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Ordinance No. 94-73 is amended as follows: "SECTION 1. Section 25-87, Article 3. Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of properties described hereinafter as follows: The district classification of the following area situated at Kanaueue 1st and 2nd, North Kona, Hawaii, shall be Agricultural (A-1a): PARCEL 1: Beginning at the Southeasterly corner of this parcel of land, being also a point on the Northerly boundary of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions, being also a point on the division between North and South Kona, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 1,704.58 feet North and 6,126.02 feet East and running by azimuths measured clockwise from True South: 1. 71° 45' 902.30 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of COmmiSsic n .rc fnr Fnraian Miccinnc to a point; ?. 152° 14' 1,055.02 feet along 865 to Joh "Exhibit 2" Exhibit B Thence, for the next seven(7) courses following along middle of stonewall and along Grant 992 to W. Whitmarsh: 3. 251a 23' 30" 224.69 feet to a point; 4. 250° 35' 58.35 feet to a point; 5. 255° 17' 131.07 feet to a point; 6. 240° 43' 26.91 feet to a point; 7. 257° 50' 172.57 feet to a point; 8. 243° 13' 30" 21.91 feet to a point; 9. 256° 57' 98.95 feet to a point; Thence, for the next twelve (12) courses following along middle of stonewall and along the remainder of Grant 865 to John Nakookoo: 10. 338° 17' 30" 158.36 feet to a point; 11. 257° 24' 102.95 feet to a point; 12. 255° 40' 30" 171.35 feet to a point; 13. 261' 29' 101.46 feet to a point; 14. 346° 30' 30" 54.40 feet to a point; 15. 343° 21' 30" 152.40 feet to a point; 16. 346° 20' 165.46 feet to a point; 17. 343° 29' 30" 80.88 feet to a point; 18. 357° 13' 57.51 feet to a point; 19. 345° 53' 30" 154.41 feet to a point; 20. 333° 53' 114.71 feet to a point; 21. 345° 43' 43.78 feet to the point of beginning and containing an area of 22.251 Acres, more or less. (Refer to Parcel 1 as shown on Exhibit "A"). Exhibit B The district classification of the following area situated at Honuaino 3rd and 4th, Hokukano 1st and 2nd and Kanaueue 1st and 2nd, North Kona, Hawaii,shall be Agricultural (A-la): PARCEL 2: Beginning at the Northwesterly corner of this parcel of land, being also a point on the Southerly boundary of Royal Patent 1098, Land Commission Award 614 to Charles Hall, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 5,408.20 feet North and 934.23 feet East and running by azimuths measured clockwise from True South: Thence, for the next sixty-seven (67) courses following along middle of stonewall and along Royal Patent 1098, Land Commission Award 614 to Charles Hall: 1. 172° 44' 35.46 feet to a point; 2. 250° 06' 26.01 feet to a point; 3. 245° 26' 19.20 feet to a point; 4. 251° 15' 39.58 feet to a point; 5. 259° 25' 18.68 feet to a point; 6. 246° 50' 16.35 feet to a point; 7. 254° 27' 40.28 feet to a point; 8. 323° 16' 7.32 feet to a point; 9. 249° 32' 44.32 feet to a point; 10. 265° 01' 30" 16.93 feet to a point; 11. 271° 10' 30" 50.61 feet to a point; 12. 261° 46' 30" 67.77 feet to a point; 13. 256° 32' 30" 36.61 feet to a point; 14. 262° 38' 30.23 feet to a point; 15. 258° 17' 37.28 feet to a point; 16. 254° 45' 21.32 feet to a point; -3- Exhibit B 17. 257° 35' 30" 36.22 feet to a point; 18. 265° 03' 21.89 feet to a point; 19. 263° 53' 30" 45.49 feet to a point; 20. 266° 14' 44.43 feet to a point; 21. 249° 07' 32.29 feet to a point; 22. 256° 49' 30" 41.74 feet to a point; 23. 250° 03' 30" 91.17 feet to a point; 24. 257° 28' 88.18 feet to a point; 25. 253° 37' 30" 14.36 feet to a point; 26. 271° 49' 7.86 feet to a point; 27. 243° 18' 30" 43.30 feet to a point; 28. 252° 36' 45.75 feet to a point; 29. 262° 29' 35.65 feet to a point; 30. 265° 31' 13.70 feet to a point; 31. 260° 35' 30" 76.29 feet to a point; 32. 268° 05' 30" 59.53 feet to a point; 33. 253° 44' 30" 12.40 feet to a point; 34. 259° 40' 25.69 feet to a point; 35. 264° 02' 51.71 feet to a point; 36. 259° 49' 30" 85.74 feet to a point; 37. 266° 56' 48.70 feet to a point; 38. 265° 44' 61.02 feet to a point; 39. 272° 05' 60.95 feet to a point; 40. 269° 19' 30" 91.04 feet to a point; 41. 275° 29' 26.42 feet to a point; 42. 280° 52' 30" 26.76 feet to a point; -4- Exhibit B 43. 272° 21' 30" 28.45 feet to a point; 44. 277° 12' 46.47 feet to a point; 45. 273° 22' 30" 84.54 feet to a point; 46. 273° 04' 30" 57.99 feet to a point; 47. 270° 29' 30.67 feet to a point; 48. 275° 46' 30" 91.01 feet to a point; 49. 267° 54' 30" 87.48 feet to a point; 50. 261° 05' 30" 28.16 feet to a point; 51. 266° 13' 128.24 feet to a point; 52. 270° 26' 114.47 feet to a point; 53. 260° 09' 81.24 feet to a point; 54. 262° 27' 166.66 feet to a point; 55. 261' 47' 108.98 feet to a point; 56. 243° 34' 33.10 feet to a point; 57. 259° 14' 30" 37.03 feet to a point; 58. 265° 34' 30" 77.10 feet to a point; 59. 262° 59' 118.99 feet to a point; 60. 256° 19' 39.78 feet to a point; 61. 262° 44' 82.08 feet to a point; 62. 267° 50' 34.11 feet to a point; 63. 265° 25' 63.09 feet to a point; 64. 273° 36' 30" 112.92 feet to a point; 65. 268° 50' 151.03 feet to a point; 66. 274° 59' 30" 35.27 feet to a point; 67. 268° 30' 30" 48.40 feet to a point; -5- Exhibit B Thence, for the next three (3)courses following along the Westerly side of old railroad and along the remainder of Grant 2029 to S. W. Makahiki: 68. 15° 00' 431.60 feet to a point; 69. 0° 23' 223.30 feet to a point; 70. 333° 44' 145.20 feet to a point; Thence, for the next seven(7)courses following along the Westerly side of old railroad and along the remainder of Grant 1453 to John Cavanah: 71. 319° 08' 63.63 feet to a point; 72. 327° 12' 30" 92.54 feet to a point; 73. 333° 41' 55.11 feet to a point; 74. 341° 52' 42.41 feet to a point; 75. 350° 21' 65.77 feet to a point; 76. 357° 11' 30" 87.84 feet to a point; 77. 7° 46' 82.65 feet to a point; 78. 17° 59' 209.88 feet along the Westerly side of old railroad and along the remainders of Grant 1453 to John Cavanah and Grant 1463 to Keawe to a point; Thence, for the next ten(10) courses following along the Westerly side of old railroad and along the remainder of Grant 1463 to Keawe: 79. 15° 46' 30" 221.91 feet to a point; 80. 350° 40' 30" 86.03 feet to a point; 81. 346° 02' 30" 127.39 feet to a point; 82. 347° 43' 68.36 feet to a point; 83. 356° 37' 108.84 feet to a point; 84. 358° 09' 110.66 feet to a point; 85. 6° 27' 30" 75.31 feet to a point; -6- Exhibit B 86. 357° 30' 30" 143.26 feet to a point; 87. 8° 45' 30" 30.57 feet to a point; 88. 359° 52' 108.27 feet to a point; 89. 265° 47' 29.79 feet along the remainder of Grant 1463 to Keawe to a point; Thence, for the next eight (8) courses following along the Easterly side of old railroad and along the remainder of Grant 1463 to Keawe: 90. 357° 33' 107.96 feet to a point; 91. 352° 21' 72.88 feet to a point; 92. 356° 43' 30" 32.40 feet to a point; 93. 353° 27' 38.77 feet to a point; 94. 350° 36' 29.09 feet to a point; 95. 339° 51' 130.13 feet to a point; 96. 329° 39' 30" 32.22 feet to a point; 97. 326° 06' 51.01 feet to a point; 98. 324° 59' 10.48 feet along the Westerly face of stonewall and along the remainder of Royal Patent 5336, Land Commission Award 9413 to Kahana to a point; 99. 320° 39' 115.81 feet along the remainder of Royal Patent 5336, Land Commission Award 9413 to Kahana to a point; 100. 67° 26' 30" 92.41 feet along wire fence and along Grant 992 to W. Whitmarsh to a point; 101. 70° 35' 63.69 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point; 102. 67° 10' 30" 124.47 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point; 103. 72° 45' 45" 371.54 feet along Grant 992 to W. Whitmarsh to a point; -7- Exhibit B 104. 79° 49' 199.I7 feet along Grant 992 to W. Whitmarsh to a point; Thence, for the next twenty-three (23) courses following along middle of stonewall and along Grant 992 to W. Whitmarsh: 105. 82° 05' 30" 51.64 feet to a point; 106. 83° 18' 181.52 feet to a point; 107. 84° 58' 30" 118.82 feet to a point; 108. 85° 30' 30" 145.13 feet to a point; 109. 91° 09' 79.55 feet to a point; 110. 82° 04' 95.77 feet to a point; 111. 82° 31' 45" 212.72 feet to a point; 112. 359° 15' 512.31 feet to a point; 113. 268° 21' 280.72 feet to a point; 114. 259° 47' 379.67 feet to a point; 115. 260° 53' 149.26 feet to a point; 116. 259° 07' 153.59 feet to a point; 117. 266° 02' 30" 90.63 feet to a point; 118. 250° 32' 115.64 feet to a point; 119. 240° 54' 54.22 feet to a point; 120. 246° 41' 140.89 feet to a point; 121. 256° 30' 30" 95.53 feet to a point; 122. 240° 04' 30" 52.97 feet to a point; 123. 245° 12' 30" 66.16 feet to a point; 124. 257° 45' 30" 34.33 feet to a point; 125. 239° 59' 72.54 feet to a point; 126. 250° 39' 30" 70.76 feet to a point; -8- Exhibit B 127. 246° 08' 111.93 feet to a point; 128. 332° 14' 1,055.02 feet along the remainder of Grant 865 to John Nakookoo to a point; Thence, for the next four(4) courses following along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions: 129. 64° 12' 628.00 feet to a point; 130. 79° 26' 602.00 feet to a point; 131. 77° 00' 987.00 feet to a point; 132. 72° 13' 704.78 feet to a point; 133. 154° 42' 918.93 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainder of Grant 1587 to John Peters on a curve to the right with a radius of 1,030.00, the chord azimuth and distance being: 134. 174° 32' 30" 699.21 feet to a point; 135. 194° 23' 350.20 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainders of Grant 1587 to John Peters and Grant 1463 to Keawe on a curve to the left with a radius of 1,270.00 feet, the chord azimuth and distance being: 136. 165° 33' 1,224.95 feet to a point; 137. 136° 43' 68.92 feet along the remainder of Grant 1463 to Keawe to a point; Thence, following along the remainder of Grant 1463 to Keawe on a curve to the right with a radius of 1,030.00 feet,the chord azimuth and distance being: 138. 149° 59' 30" 473.03 feet to a point; 139. 163° 16' 839.35 feet along the remainders of Grant 1463 to Keawe, Grant 1453 to John Cavanah and Grant 2029 to S. W. Makahiki to a point; -9- Exhibit B Thence, for the next three (3) courses following along Grant 865 to John Nakookoo: 23. 257° 00' 987.00 feet to a point; 24. 259° 26' 602.00 feet to a point; 25. 244° 12' 628.00 feet to a point; 26. 330° 55' 956.00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 27. 255° 14' I,338.05 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 28. 357° 38' 634.16 feet along Grant 977 to Panaunau to a point; 29. 76° 40' 30" 1,596.74 feet along Grant 1177 to Kamakahiona to a point; 30. 76° 40' 30" 44.81 feet along Grant 1177 to Kamakahiona to a point; Thence, for the next six (6) courses following along the Westerly side of old railroad: 31. 353° 25' 54.23 feet to a point; 32. 346° 06' 95.32 feet to a point; 33. 342° 16' 30" 289.54 feet to a point; 34. 341° 04' 132.29 feet to a point; 35. 345° 33' 48.71 feet along the remainders of Grant 1177 to Kamakahiona and Grant 1175 to Nakauwaa to a point; Thence, for the next six (6) courses following along the remainder of Grant 1175 to Nakauwaa: 36. 350° 55' 30" 47.80 feet to a point; -16- Exhibit B 37. 260° 45' 8.34 feet to a point; Thence, for the next four(4)courses following along the Westerly face of stonewall and along the Easterly side of old railroad: 38. 353° 43' 30" 58.69 feet to a point; 39. 1° 03' 30" 50.75 feet to a point; 40. 4° 06' 30" 32.09 feet to a point; 41. 9° 18' 30" 46.75 feet to a point; Thence, for the next four(4)courses following along the Northerly face of stonewall: 42. 79° 50' 28.51 feet along Grant 787 to H. N. Greenwell to a point; 43. 63° 01' 30" 205.62 feet along Grant 787 to 11. N. Greenwell to a point; Thence, for the next twenty-six (26) courses following along the remainder of Grant 787 to H.N. Greenwell: 44. 58° 15' 190.84 feet to a point; 45. 95° 12' 30" 36.26 feet to a point; Thence, for the next ten(10) courses following along the Westerly face of stonewall: 46. 340° 55' 30" 51.47 feet to a point; 47. 336° 12' 30" 95.40 feet to a point; 48. 340° 54' 85.38 feet to a point; 49. 338° 48' 30" 46.81 feet to a point; 50. 342° 23' 65.75 feet to a point; 51. 334° 35' 30" 65.95 feet to a point; 52. 332° 23' 82.87 feet to a point; 53. 324° 00' 11.13 feet to a point; 54. 332° 36' 30" 113.50 feet to a point; -17- Exhibit B 55. 347° 43' 24.68 feet to a point; Thence, for the next four(4)courses following along the Westerly side of old railroad: 56. 338° 19' 61.45 feet to a point; 57. 327° 39' 30" 17.91 feet to a point; 58. 347° 16' 94.25 feet to a point; 59. 344° 55' 30" 113.58 feet to a point; 60. 267° 05' 30" 16.83 feet to a point; Thence, for the next six (6) courses following along middle of stonewall: 61. 341° 48' 30" 54.25 feet to a point; 62. 346° 24' 30" 109.52 feet to a point; 63. 330° 20' 62.30 feet to a point; 64. 336° 48' 111.89 feet to a point; 65. 325° 21' 106.90 feet to a point; 66. 62° 18' 30" 29.22 feet to a point; Thence, for the next three (3) courses following along Westerly face of stonewall: 67. 337° 28' 30" 112.46 feet to a point; 68. 337° 08' 183.98 feet to a point; 69. 337° 36' 30" 153.52 feet to a point; 70. 254° 02' 30" 25.45 feet along the Southerly face of stonewall and along Grant 787 to H. N. Greenwell to a point; Thence, for the next seven(7) courses following along the Westerly side of old railroad and along the remainder of Royal Patents 4386 and 7146,Land Commission Award 8452 to A. Keohokalole: 71. 338° 26' 168.87 feet to a point; 72. 337° 34' 153.12 feet to a point; -18- Exhibit B 73. 335° 16' 30" 329.74 feet to a point; 74. 336° 16' 30" 122.94 feet to a point; 75. 334° 38' 30" 193.93 feet to a point; 76. 335° 59' 267.46 feet to a point; 77. 329° 13' 30" 141.50 feet to the point of beginning and containing an area of 271.415 Acres. (Refer to Parcel 4 as shown on Exhibit All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part hereof(herein after referred to as "subject property"). SECTION 3. These changes in district classification are conditioned upon the following: (A) The applicant, successors or assigns shall be responsible for complying with all of the stated conditions of approval; (B) The effective date of the rezoning shall be upon: (1) the execution of an agreement, between the applicant,Lyle Anderson, and the County through its Department of Water Supply and Planning, to assign water commitment rights in the Kealakekua Source Agreement to the current landowners of the subject property within one-hundred-eighty(180) days from the effective date of this ordinance; provided that a maximum ninety (90) day extension may be granted by the Planning Director with reasonable and sufficient justification; and (2) the acceptance by the Department of Water Supply of the required water commitment payment in accordance with its "Water Commitment Policy" within one-hundred-eighty (180) days from the effective date of this ordinance; (C) Subdivision plans for any portion of the subject property shall be submitted to the Planning Department and Tentative Subdivision Approval secured within four(4) years from the effective date of this rezoning as determined in Condition B; Final Subdivision Approval shall be secured within five(5)years from the effective date of this rezoning as determined in Condition B. For the purpose of this ordinance, -19- Exhibit B Final Subdivision Approval shall be defined as the subdivision of any agricultural zoned lot to a lot less than twenty(20) acres in size within the subject property; (D) A wastewater disposal system shall constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works, whichever is applicable; (E) All electrical and communication utilities lines within the subject property shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site; (F) A Flood Study of the subject property shall be submitted to the Planning Department in conjunction with plans submitted for subdivision review for any portion of the subject property. Drainage improvements shall be constructed in a manner meeting with the approval of the Department of Public Works, prior to the issuance of Final Subdivision Approval for the subject property; (G) An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division, prior to submitting plans for subdivision review. The Plan shall consist of three subplans: (1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim protection/preservation plan for the sites to undergo preservation, and (3) an interpretation plan which shall include buffer zones, signage and long-range preservation concerns which may be submitted at a later date. Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the subject property; (H) A final comprehensive public access plan. to be developed in consultation with community gropps. shall be submitted to apd approved by the Planning Director prior -20- Exhibit B to final subdivision approvaL or amv ianstalteration_activity. whichever comes first. The final comprehensive public access plan_shall besievelow in consultation with the Planning Director and the Department of Land and Natural Resources and shall include mauka-makai and IateraLshoreline accesses.parking area(s). signage, emergency response co I Side-ration . restrictions on use (if any).provision of - - _ '. I c_ . 1. - SOLI 1 a .t . . . . .:. - 4.. l _ -I 11 . . _ 11 - 1 [The applicant shall be responsible to comply with Condition No. 8 of SMA Permit No. 345 issued to the applicant on November 5, 1993]; provided, that the construction of the coastline park and access ways shall be subject to the obtaining of all necessary discretionary permits (e.g., Conservation District Use Approval, Special Management Area Use Permit, etc.); provided, further, that the applicant shall be responsible to comply with the following terms and conditions: [(1) The applicant shall develop and submit a comprehensive public shoreline access plan for the subject property and the properties described in the SMA Permit No. 345, subject to the review and approval by the Planning Director, in consultation with the Department of Land and Natural Resources, prior to Final Subdivision Approval, or any land alteration activity, whichever comes first;] (1.1[(2)] An area comprising twenty-five percent(25%)of the total park area, as shown on Exhibit "E" attached hereto and made a part hereof, shall be developed and improved by the applicant or its agent in phases within five(5) years from the date Final Subdivision Approval is obtained on the subject property. The first phase shall be completed and open to the public within thirty (30) days following the opening of the golf course; [(3) No more than a total land area of twelve(12) acres shall be permitted to be constructed, operated and maintained as part of the applicant's golf course, approved as Use Permit No. 115, and included within the coastline park or the existing conservation district lands;] [(4)] [A] Upon opening the firstphase of the parkarea. a minimum of twenty-five (25) public parking stalls in addition to parking stalls for residents, guests, and employees within the subject property and the applicant's adjacent lands at the -21- Exhibit B principal shoreline access parking area(s), signage and provisions for public access for night fishing and marine food gathering purposes over designated vehicular and pedestrian access routes subject to restrictions which limit said uses to recreation uses only, and other restrictions which provide for the health and safety of the general public and residents alike. The number of parking stalls shall be increased commensurately with the approval of additional park phases in accordance with the public access plan; and (31[(5)] The public shoreline access plan shall also integrate where appropriate, any public accessway(s) to interpretive trail system(s)and to the historical and archaeological sites to be approved by the Planning Director, in consultation with the Department of Land and Natural Resources in conjunction with the detail mitigation plan for the park area situated in the Conservation district. (I) Prior to final approval of a small lot subdivision plat within the subject property,the applicant shall convey to the County of Hawaii by way of a perpetual easement the right to public access and recreational use of[the] its privately owned coastline park and trails; provided,that restrictions [in accordance with Chapter 115, Hawaii Revised Statutes,] will be allowed to be established by the applicant, subject to the approval of the Planning Director, to promote public health and safety and the general security of the premises for residents and guest of the project to protect the area's pristine condition, and to minimize any liability to the applicant, pursuant to Chapter 520, Section 520-4, Hawaii Revised Statutes. The applicant shall retain ownership of its [own the] coastline park and trails in fee simple and maintain all lands in the coastline park area and operate such facility for public recreational use in accordance with the above terms and conditions. This condition shall not be applicable to any roadway, trail or other rights-of-way. which are deemed public highways or trails as defined in Chapter 264,Hawaii Revised Statutes; (J) Should any unidentified sites or remains such as artifacts, shell, bone, or charcoal deposits, human burials, rock or coral alignments, pavings or walls be encountered, work in the immediate area shall cease and the Planning Director shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken; -22- Exhibit B (K) A solid waste management plan shall be prepared meeting with the approval of the Department of Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to,the management of construction solid waste as well as operating and domestic solid waste generated by the subject property. Approved recommendations and mitigation measures shall be implemented at a time and in a manner meeting with the approval of the Department of Public Works; (L) Roadway improvements and access(es)to the subject property, including all plans and construction, shall meet with the approval of the Department of Public Works. Prior to the issuance of Final Subdivision Approval for any portion of the subject property, the applicant shall: (1) construct the channelization and signalization of the Mamalahoa Highway- Haleki'i Street intersection; (2) determine the final right-of-way alignment of the entire Mamalahoa Highway Bypass [road as shown in Exhibit "C",] between the approximate vicinity of Keauhou and Captain Cook, including its intersection areas and its acquired ownership or control. The applicant shall provide the Planning Director with a metes and bounds description of each road right-of-way segment involved and evidence of its ownership or control as deemed necessary by the Planning Director. In lieu of the applicant obtaining or acquiring ownership or control of any segment[within the Phase Two portion] of the Mamalahoa Highway Bypass [road],the requirement shall be deemed fulfilled upon the county's formal initiation of condemnation action for such segments and an agreement has been entered into [to] between the applicant and the county providing for the applicant's reimbursement to the county for the acquisition of the lands condemned; (3) construct [Phase One of] the Mamalahoa Highway Bypass [as shown in Exhibit"C",] in its entirety between the approximate vicinity of Keauhou and Captain Cook, consisting of two lanes with sufficient right-of-way for a total of four lanes. provided further that the section of the Mamalahoa Highway Bypass between_Keauhou and Haleki'i Street shall be completed and available -23- Exhibit B for public use prior to the occupancy of any dwelling unit within the entire project area; [(4) construct the channelization improvements on Kuakini Highway at its intersection with the north end of the Mamalahoa Bypass;] 14 [(5)] construct the extension of Haleki'i Street through the subject property as generally reflected in Exhibit "Be, which phasing of improvements shall be approved by the Department of Public Works. [A] If. before the completion and opening of the entire Matnalahoa Highway Bv, ass. a_portion of said bypass is completed and opened. and said portion provides a connection to Haleki'i Street. a barricade or breakaway gate, meeting with the requirements of the Department of Public Works, shall be installed by the applicant as part of the required Halekui Street improvements, [prior to the completion of Phase 1 of the Mamalahoa Highway Bypass or the construction of any dwelling unit or golf course clubhouse facility, whichever occurs first.] The purpose of this condition is to prevent the use of Haleki'i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and A portion [the Phase 1 section ]of the Mamalahoa Highway Bypass until the entire proposed Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook has been completed and opened for general public use; and L5-1[(6)1 provide roadway stub-outs, generally shown in Exhibit "Be, to provide future connections between the subject property, [the Alii Highway, and southern extensions there from;] And the adjacent properties to the north and south; provided that such stub-outs shall be constructed in accordance with the construction phasing as approved by the Department of Public Works. The applicant shall construct the Mamalahoa Highway Bypass to [State Department of Transportation-Highways Division Standards for a regional arterial bypass highway or segments thereof, and] standards set forth by the Department of Public Works for Alii Highway with_such modifications as may be deemed necessary by the Department of Public Works, The applicant shall provide a landscape buffer along highway sections within five hundred feet of existing dwellings , as required by the chief engineer, to -24- Exhibit B reduce the impacts of noise and light on the residents therein and to generally beautify the highway appearance in such locations[. Roadway segments providing the bypass's connection with the existing highways at its north termini shall be built to county dedicable standards for secondary arterials,pursuant to Chapter 23 of the Hawaii County Code, instead of the State DOT standards for major arterials,in the case where the roadway segment is consistent with a Department of Transportation plan which provides for such segments to be a lesser,connector road and for the later extension of the arterial bypass highway to be substantially further north or south before merging with other arterial roadways]; provided that the applicant shall enter into a reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction, land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom the county may determine as benefiting from the Mamalahoa Highway Bypass [Highway] and which funds are available to the county for such purpose; and provided further, that the total amount of reimbursement due to the applicant shall not exceed the total cost of land acquisition, design and construction of the Mamalahoa Highway Bypass [Highway] incurred by the applicant, less the pro rata portion attributed to the subject property; [(M) Prior to Final Subdivision Approval of any portion within Area 2 as shown in Exhibit "D" except for the golf course, golf clubhouse, lodge and related facilities, the applicant shall: (1) complete the construction of the Phase Two of the Mamalahoa Bypass consisting of two lanes with sufficient right-of-way for a total of four lanes as shown in Exhibit "C", meeting with the approval of the Department of Public Works, in consultation with the State Department of Transportation-Highways Division; and (2) complete the construction of the Mamalahoa Bypass channelization improvements at its intersection with Mamalahoa Highway and Napo'opo'o Road,meeting with the requirements of the Department of Public Works, in consultation with the State Department of Transportation-Highways Division;] -25- Exhibit B (M)[(N)] All roadway improvements stated in Condition L [and M] of this ordinance shall be dedicated to the [appropriate government entity. Those improvements associated with the Mamalahoa Highway Bypass shall by offered to the State Director of Transportation pursuant to Section 264-1 of the Hawaii Revised Statutes. Any connector roadways, and any portion of the Mamalahoa Highway Bypass not accepted by the State Director of Transportation shall be dedicated to the County, as provided by law] County of Hawaii; (N)[O)] To ensure that the Goals and Policies of the Recreational Element of the General Plan are implemented, the applicant shall provide [a maximum of] two acres of land abutting the north side of Kona Scenic Park for public purposes prior to Final Subdivision Approval of the subject property. (Q)[(P)] In lieu of actual construction of infrastructural improvements as required under Conditions D, F, H, K, and L,[and M,] the applicant may enter into an agreement with the Planning Director to assure the county that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable to the Planning Director and the Corporation Counsel. Upon execution of such agreement and/or filing of the security with the County, Final Subdivision approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements; [(Q) The Applicant shall participate in the funding and construction of any regional roadway improvements as may be required by the State Department of Transportation, provided that any costs borne by the applicant shall be credited and limited to the amount of its fair share contribution for regional road and traffic impacts, as required in Conditions L and M]; [(R)] It shall be demonstrated to the satisfaction of the Planning Director that agricultural activity is being conducted on the subdivided lots within three years from the date of Final Subdivision Approval. For the purposed of this condition, "agriculture" shall be defined as the cultivation of crops, including but not limited to flowers, vegetable, foliage, and fruits that are propagated for economic or personal use. An agricultural activity will be considered satisfactory: -26- Exhibit B (1) if such activity is implementing a conservation program for the affected property(ies), as approved by the applicable soil and water conservation district directors and filed with the Soil Conservation Service; (2) if it provides a source of income to the person(s) who reside on the property; or (3) if the property is dedicated for agriculture uses in accordance with applicable Tax Department procedures and that such agriculture dedication shall be made a deed covenant and duly recorded with the State Bureau of Conveyances and a copy of the recorded deeds shall be filed with the Planning Department within one year from the date of Final Subdivision Approval. Each approved lot must comply with at least one of the above requirements to satisfy the conditions of approval of this ordinance; MRS)] Restrictive covenants in the deeds of all the proposed lots shall prohibit the construction of a second dwelling unit on each lot; provided that this shall not preclude the construction of a guest house as defined under Chapter 25 of the Hawaii County Code. A copy of the proposed covenant(s) to be recorded with the Bureau of Conveyances shall be submitted to the Planning Department for review and approval prior to final subdivision approval. A copy of the approved covenant shall be recited in an instrument executed by the applicant and the county and recorded with the Bureau of Conveyances likewise prior to final subdivision approval; (R1[(T)] [The Applicant shall pay its fair share contribution to address potential regional impacts of the subject property with respect to park, fire,police, solid waste disposal facilities, sewer and roads. The fair share contribution shall be initially based on the representations contained within the change of zone application and may be increased or reduced proportionally if the agricultural lot counts are adjusted. The fair share contributions described below shall be adjusted annually based on the percentage change in the Honolulu Consumer Price Index (HCPI). The fair share contribution for each agricultural zoned lot of the subject property less than ten acres in size shall be based on a maximum density for each Iot as determined by the zoning resulting from this change of zone. The fair share contribution in a form of cash, land, facilities, or -27- Exhibit B any combination thereof shall have a maximum combined value of$ 4,701,205.74. In lieu of paying the fair share contribution, the applicant may construct such improvements/facilities related to park, fire,police, solid waste disposal facilities, sewers and roads with the approval of the appropriate agency(ies). Any contributions required by this ordinance that exceed the fair share requirement of this proposed development shall, at the applicant's request be credited towards any of the applicant's future developments that require infrastructural impact contributions; The applicant shallmake its fair share contribution to mitigate the potential regional impacts of the subiect properly with respectto parks and recreation . fire. police. solid waste disposal facilities. and roads. The amount of the fair shale contribution shall be the sum which is the product of multiplying the number of lots proposed to be sul2clivided lav the amounts allocated hereinbelow for each such lot. and shall become due I s payable prior to final subdivision approval for any portion of the subject property or its increm_eznts. If the subject property is subdivided in two or more increments. the amount of the fair share contribution due and payable prior to final subdivision approval of each increment shall be a sum calculated in the same manner according to the number of additional proposed lots in each such increment. The fair share contribution for each lot. except for lots larger than ten acres in size or which are committed exclusively for golfcourse and_Rark purposes.shall be based on the maximum allowable density of building sites as determined by the zoning of such lot. The fair share contribution in a form of cash. land. facilities. or any combination thereof acceptable to the director in consultation with the affected agencies shall have a maximum combined value of$7.239.16 per lot, Based upon the applicant's representation of intent to subdivide and develop up to 400 lots. the indicated total fair share contribution is S.7.895.6_64.01k however. the total amount shall be increased or reduced in_proportion with the actual number of subdivided lots according to the calculation and payment provisions set forth in this Condition 0. The fair share contribution shall be allocated as follows; $3.490.$5 per Lot, for an indicated total of SL396 340 90 to the County tQ support park and recreational improvements and facilities., -28- Exhibit B 041 $168..40 =riot fot an indicated total of$67.360.00 tom County to support police facilities; f •• • • •• . p . . •_ . • .. • I H I • • • • .• • fire facilities; 4) $145.62 per lot for an indicated total of$5$,24$,00 to the County to support solid waste facilities; SL1 $3.101.68 per lot. for anindicated total of SL240.672.00 to the State or County Iv support road and traffic improvements, The fair share contributions described above shallbe adjusted annually beginning three years after the effective date of this ordinance.basil on the percentage change in the Honolulu Consumer Price Index (-ICPI2. In lieu of paying the fair share contribution_the applicant may construct improvements/facilities related to parks and recreation. fire. police, solid waste disposaLfacilities.and roads within the region impacted by the proceed development.subject to the approval of the planning director. The cost of constructing the improvements required in Conditions H. K and L shall be credited against the sumspecified in Condition R(1) for parks and recreation. Condition R(4)for solid waste facilities. and in Condition R(5) for road and traffic improvements. For purposes of administering Condition R. the value of land contributed or the cost of any improvements required or made in lieu of the fair share contribrtion shall be such amount as moved by the Planning Director.upon consultation with the appropriate agencies. [(U) The Applicant shall conform, to the best extent practicable, with the guidelines as provided within the Strategies for Energy Efficient Architecture by Hawaiian Design and the State Model Energy Code, in the construction of dwellings within the subject property; ] 1.5 [(T)] In the event that the State Department of Education adopts an educational facilities impact fee program, the applicant shall participate in the requirements of the program; -29- Exhibit B (1.1[(W)] Comply with all applicable laws, rules, regulations and requirements, including those of the Department of Health, Fire,and the Department of Water Supply; 12.DRX)] Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees,conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance; Ca[(Y)] An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone. The report shall address in detail the status of the development and the compliance with the conditions of approval. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required; and, JW)[(Z)] An extension of time for the performance of conditions within the ordinance, with the exception of Condition C, may be granted by the Planning Director upon the following circumstances: (1) the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns,and that are not the result of their fault or negligence; (2) granting of the time extension would not be contrary to the General Plan or Zoning Code; (3) granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; (4) the time extension granted shall be for a period not to exceed the period originally granted for performance(i.e.,a condition to be performed within one year may be extended for up to one additional year); and -3()- Exhibit B Thence, following along the remainder of Grant 2029 to S. W. Makahiki on a curve to the left with a radius of 470.00 feet, the chord azimuth and distance being: 140. 136° 23' 15" 424.98 feet to a point; 141. 165° 15' 189.91 feet along Grant 1651 to Charles Hall to the point of beginning and containing an area of 295.539 Acres. (Refer to Parcel 2 as shown on Exhibit "A") SECTION 2. Section 25-88, Article 3, Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of properties described hereinafter as follows: The district classification of the following area situated at Halekii and Keekee 1st, South Kona, Hawaii, shall be Agricultural (A-l a): PARCEL 3: Beginning at the Northeasterly corner of this parcel of land, being also the Northwesterly corner of Lot 39 of Kona Scenic Subdivision, Unit II (File Plan 1591) and being a point on the Southerly boundary of Grant 865 to John Nakookoo, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 2,272.75 feet North and 8,616.61 feet East and running by azimuths measured clockwise from True South: 1. 350° 44' 55" 482.03 feet along Lots 39, 38, 37, 36, 35 and 34 of Kona Scenic Subdivision, Unit II (File Plan 1591) and along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions and along the Westerly end of Haleki'i Street to a point; 2. 78° 30' 470.15 feet along Lot 3 (Government Land - County of Hawaii) to a point; 3. 348° 30' 438.70 feet along Lot 3 (Government Land - County of Hawaii)to a point; 4. 266° 28' 187.31 feet along Lot 3 (Government Land - County of Hawaii) to a point; -10- Exhibit B Thence, for the next eleven(11) courses following along middle of stonewall: 5. 4° 59' 157.50 feet along Lots 22 and 21 of Keekee Estates (File Plan 2087)and along the remainder of Grant 977 to Panaunau to a point; 6. 17° 24' 30" 102.93 feet along Lots 21 and 20 of Keekee Estates (File Plan 2087)and along the remainder of Grant 977 to Panaunau to a point; 7. 7° 45' 30" 174.98 feet along Lots 20 and 19 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 8. 91° 17' 30" 56.46 feet along Lot 18 of Keekee Estates (File Plan 2087)and along the remainder of Grant 977 to Panaunau to a point; 9. 355° 54' 30" 333.18 feet along Lots 18 and 17 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; Thence, for the next four(4) courses following along Grant 866 to Kapule: 10. 86° 02' 30" 309.93 feet along Lot 2 to a point; 11. 80° 19' 207.35 feet along Lot 1 to a point; 12. 75* 14' 183.86 feet along Lot 1 to a point; 13. 79° 02' 674.13 feet along Lot 1 to a point; 14. 177° 38' 634.16 feet along the remainder of Grant 977 to Panaunau to a point; 15. 75° 14' 1,33 8.05 feet along Grant 977 to Panaunau to a point; 16. 150° 55' 956.00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 17. 251* 45' 902.30 feet along Grant 865 to John Nakookoo to a point; -11- Exhibit B Thence, for the next thirty-six(36)courses following along middle of stonewall and along Grant 865 to John Nakookoo: 18. 250° 02' 30" 41.72 feet to a point; 19. 238° 11' 30" 99.82 feet to a point; 20. 246° 13' 93.37 feet to a point; 21. 253° 29' 121.82 feet to a point; 22. 257° 51' 121.61 feet to a point; 23. 249° 33' 59.76 feet to a point; 24. 245° 51' 177.23 feet to a point; 25. 248° 02' 30" 92.17 feet to a point; 26. 240° 26' 30" 60.37 feet to a point; 27. 254° 58' 110.46 feet to a point; 28. 258° 29' 24.30 feet to a point; 29. 274° 56' 30" 31.91 feet to a point; 30. 260° 18' 30" 148.31 feet to a point; 31. 253° 43' 47.09 feet to a point; 32. 243° 21' 30" 89.60 feet to a point; 33. 263° 53' 30" 70.49 feet to a point; 34. 254° 39' 30" 21.88 feet to a point; 35. 269° 41' 41.10 feet to a point; 36. 288° 24' 45.97 feet to a point; 37. 255° 29' 30" 27.38 feet to a point; 38. 241° 21' 30.35 feet to a point; 39. 227° 12' 30" 53.91 feet to a point; 40. 216° 24' 30" 55.73 feet to a point; 41. 238° 55' 30" 27.24 feet to a point; -12- Exhibit B 42. 255° 23' 30" 29.74 feet to a point; 43. 271° 22' 69.73 feet to a point; 44. 265° 04' 29.52 feet to a point; 45. 275° 29' 30" 98.69 feet to a point; 46. 271° 04' 85.71 feet to a point; 47. 277° 42' 30" 71.32 feet to a point; 48. 269° 46' 21.84 feet to a point; 49. 270° 48' 110.24 feet to a point; 50. 268° 22' 91.02 feet to a point; 51. 258° 19' 92.53 feet to a point; 52. 270° 26' 57.58 feet to a point; 53. 265° 38' 177.70 feet to the point of beginning and containing an area of 94.387 Acres, more or less. (Refer to Pacel 3 as shown on Exhibit "A") The district classification of the following area situated at Halekii, Keekee 1st and 2nd, Ilikahi, Kanakau 1st and 2nd, Kalukalu 1st,2nd, and 3rd and Onouli 1st, South Kona, Hawaii, shall be Agricultural (A-la): PARCEL 4: Beginning at the Southeasterly corner of this parcel of land, being also a point on the Northerly boundary of Grant 1162 to F. O. Schulze,the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 4,046.78 feet South and 6,502.93 feet East and running by azimuths measured clockwise from True South: 1. 65° 45' 54" 1,071.96 feet along middle of stonewall and along Grant 1162 to F. O. Schulze to a point; 2. 78° 08' 30" 1,407.43 feet along middle of stonewall and along Grant 1162 to F. O. Schulze to a point; Thence, for the next three (3)courses following along the remainder of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole: -13- Exhibit B 3. 203° 12' 488.09 feet to a point; Thence, following on a curve to the left with a radius of 870.00 feet, the chord azimuth and distance being: 4. I72° 50' 30" 879.41 feet to a point; 5. 142° 29' 272.49 feet to a point; Thence, following along the remainders of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole, Grant 1160 to H. N. Greenwell,and Grant 1576 to Lohi on a curve to the right with a radius of 1,130.00 feet, the chord azimuth and distance being: 6. 169° 47' 1,036.55 feet to a point; 7. 197° 05' 307.17 feet along the remainders of Grant 1576 to Lohi and Grant 1464 to Ialua to a point; Thence, following along the remainder of Grant 1464 to Ialua on a curve to the left with a radius of 645.00 feet,the chord azimuth and distance being: 8. 183° 07' 311.35 feet to a point; 9. 169° 09' 54.98 feet along the remainder of Grant 1464 to Ialua to a point; Thence, following along the remainders of Grant 1464 to Ialua and Grant 1175 to Nakauwaa on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 10. 186° 06' 411.07 feet to a point; 11. 203° 03' 162.63 feet along the remainder of Grant 1175 to Nakauwaa to a point; Thence, following along the remainder of Grant 1175 to Nakauwaa and Grant 1177 to Kamakahiona on a curve to the left with a radius of 645.00 feet, the chord azimuth and distance being: I2. 186° 42' 30" 362.96 feet to a point; -14- Exhibit B 13. 170° 22' 60.05 feet along the remainder of Grant 1177 to Kamakahiona to a point; Thence, following along the remainders of Grant 1177 to Kamakahiona and Grant 1176 to Kini on a curve to the right with a radius of 705.00 feet,the chord azimuth and distance being: 14. 186° 12' 384.70 feet to a point; Thence, for the next five(5)courses following along the remainder of Grant 1176 to Kini: 15. 202° 02' 35.26 feet to a point; Thence, following on a curve to the left with a radius of 30.00 feet,the chord azimuth and distance being: 16. 157° 02' 42.43 feet to a point; 17. 112° 02' 85.32 feet to a point; Thence, following on a curve to the left with a radius of 645.00 feet,the chord azimuth and distance being: 18. 97° 14' 329.53 feet to a point; 19. 82° 26' 397.26 feet to a point; Thence, following along the remainders of Grant 1176 to Kini and Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 20. 118° 34' 831.43 feet to a point; 21. 154° 42' 342.97 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 22. 252° 13' 704.78 feet along Grant 1587 to John Peters and Grant 865 to John Nakookoo to a point; -15- Exhibit B (5) should the Applicant require an additional extension of time,the Planning Director shall submit the Applicant's request to the County Council for appropriate action. Further, should any of the conditions not be met or substantially complied with in a timely fashion,the Director shall initiate rezoning of the area to its original or more appropriate designation." SECTION 2. In the event that any portion of the ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 3. This ordinance shall take effect upon its approval. INTRODUCED BY: Laiisoaft: 0.2 JIA0144.41..~.406:8 COUNCIL MEMBER,COUNTY OF All Hilo, Hawaii Date of Introduction: December 15, 1995 Date of 1st Reading: December 15, 1995 Date of 2nd Reading: January 3 , 1996 Effective Date: January 15, 1996 A7PROVED as to and OA2.1TY DE CO2PO"ATICN COUNSEL COUNTY OF HAWAII Date.../�//ru -31- Exhibit B 1 r I'i i a- t 3i I i : j I !' a ! ! = s _ 1 i I 1 ! l : 'lie +31iirit :J11jJ: t ii!fil I ii�i != } + liii I3 i 1; 1)3.I 1 i312.1iii ' i 111111 11 s ;•',; f s 1 Ell fIlr�,: 1 111 13 r • 1I ) 1 It 0 I I ( 1` i I I' •1 ' f 1 rte,• !All, 1 f iii i !•r s:' 1'`` �SI 'f ' n ... • w •• . It It:11 /11• T 9.4 !! 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Hawaii R E C t �` L '--, ( D �MI)16 fill 7 57 L)F F 1 C E r :11°LL,C4I4LYPITE COUNT i OkittS,WA(NOES ABS Ex Introduced By: Takashi Domingo Arakaki X Date Introduced: December 15, 1995 - Bonk-Abramson X First Reading: - December 15, 1995 X Published: N/A De Lima X REMARKS: Domingo X Osorio X Rath X Ray X Smith X 7 2 0 0 ( DRAFT 6 ) ROLL CALL VOTE Second Reading: January 3 , 1996 AYES NOES ABS EX To Mayor: January 4 , 1996 Returned: January 16, 1996 Arakaki X Effective: January 15 , 1996 Bonk-Abramson X Published January 24 , 1996 Childs X De Lima X REMARKS: Domingo X Osorio X Rath X Ray X Smith X 7 2 0 0 I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as indicated above. COUNCIL CHAIRMAN COUNTY CLERK Approved this day of ,19 9 ' . 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Q, '• . _... •,. ` -4," .,.' . ..., . -'- • A e•-..1-.•t-...-:-:, i {. .‘',(-171 • 1 ,,, ‘•....k, i•‘"• , ji ,--•.... !..--•14d',':•": -,..-, ••.., - • ,--.L._ , ..:."1 .‘ I, \ 1 • i't . '....1 ••-,--._ 41h.x u . •-&-' IL..I-: .:.,...: .•:-/7. •/ . i ( .5 ' ' i - -04)-.-- •--ti -1 L•11 ...,,.. t ..:4:' -,N .... . , l'.N4eilmill ' • - ‘.--- s . ,n- • A ..... ' ' • ...,, t V:. . . -6," ‘. -- I :tc i.j J -a‘• =4 4 rt zte.. 'et• - .•:::.Lc...,.: •.....":• 111 : :r•. .... .4 /1'...` 4 ..". : j.-- •c. ' :_s••st. - • '-'- ' i - . 0 ' ... ‘00 ; •. . 1..: • • • •p* • ‘ ' • ... . - •:S--.t.-.----- : •• l'i ' - -1- 0 \., • : r•; , ' • ""I C ''''' . • . . .. , ca m •..4 .-. - . • e • • - A Z :C . . •• ,.• • • . ... • r....* ...•..- ' - .... th , t . . . • • ;*.• :...ir.r a 22_ , . • . , ....._. . _ - . . .... z z lopyhihit " Eraii6k: 2 CARLSMITH BALL LLP A LIMITED LIABILITY LAW PARTNERSHIP 121 WAIANUENUE AVENUE P.O.Box 686 HILO,HAWAII 96721-0686 TELEPHONE 808.935.6644 FAX 808.935.7975 W W W.CARLSMITH.COM SLIM@CARLSMITH.COM August 10, 2022 VIA HAND DELIVERY Zendo Kern Director Planning Department 101 Pauahi Street, Suite 3 Hilo, Hawaii 96720 Attn: Jeff Darrow Re: 2020 to 2022 Annual Progress Report Change of Zone Ordinance 96-7, Condition R Change of Zone Ordinance 96-8, Condition Y Special Management Area 345 Special Management Area Permit No. 356, Condition 13 Special Management Area Permit No. 401, Condition 16 Special Management Area 404 Special Permit No. 07-44, Condition 6 Applicant: 1250 Oceanside, LLC Development: Hokuli'a Tax Map Keys Nos.: 7-9-006:001, 7-9-012: Portions of 003, 004, and 005, and 8-1-004: Portion of 003 Dear Mr. Kern: On behalf of our client, 1250 Oceanside LLC ("1250"), we hereby submit the enclosed 2020 to 2020 Annual Progress Report covering all the County entitlements relating to the Hokuli'a project(the "Project") that require the filing of an annual report. The last comprehensive annual progress report addressing the Hokuli'a entitlements was provided to the County in 2020. We apologize for this oversight and 1250 will timely file the annual progress reports going forward. Very little has changed since our last report in 2020, however, we have enclosed a set of matrices that outline the various conditions of approval for the above referenced entitlements and 1250's status of compliance with the stated conditions of approval. You will note that we have not included matrices for SMA Permit No. 402, Special "Exhibit 3" 4888-7398-3527.2 Exhibit B Page 2 Permit No. 1056 and Use Permit No. 115, as we indicated in our last report from 2020 that 1250 has complied with all the required conditions of approval for these entitlements. The status on these permits remain unchanged. We are also enclosing Water Quality Monitoring Reports for 2020 and 2021, which concludes that the Hokuli'a development activity continues to have no discernible impact on water quality. We trust that the information provided satisfies the annual reporting requirements for the Project entitlements. If you require any additional information or clarification about 1250's compliance with the existing Project entitlements,please do not hesitate to contact my paralegal Jason Knable at 808-935-6644 at any time. Sincerely, Steven S.C. Lim Enclosures SSL/jkkl cc: 1250 Oceanside, LLC 4888-7398-3527.2 Exhibit B 0 0 y .�' -E 0 0 - 0 cC o H o 0 E� 3 0 0 3 -0 ,.. 4 .:t-1aU 0 -0 -o O 4. Q.75, p. ° c/) 0 CO 0° .O a) L-1 v] J S-. Sr �}•y Y r• a) li ., VJ 40 tal ,9 v b •d c3 3 O O s.. a) }' Y a -0 E O 0 x 0 v ct czt -0 at �� C1 0 r� a� Cd o . 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Director l Margaret K.Masunaga �.+i•' ".•�• Deputy West Hawai i Office East Hawe 74-5044 Ane Keohokalole Hwy t, Office Kailua-Kona,Hawai'i 96740 County of HawaiHilo, i 101 Street,5963 Phone(808)323-4770 Hilo,Hawaii 9677 20 Fax(808)327-3563 PLANNING DEPARTMENT Phone(808)961-8742 Fax(808)961-8742 August 23, 2012 Mr. Sidney Fuke Planning Consultant 100 Pauahi Street, Suite 212 Hilo,HI 96720 Dear Mr. Fuke: SUBJECT: Compliance of Condition 0-Change of Zone Ordinance No. 96-7(REZ 812), and Condition R- Change of Zone Ordinance No. 96-8 (REZ 765)- Fair Share Contributions Landowner: 1250 Oceanside Partners/Red Hill 1250,Inc. TMK: 7-9-12:various,8-1-4: various, 8-1-32: various, 8-1-33: various In our previous letter dated June 21, 2012, we incorrectly stated that the costs of on-going maintenance for the Shoreline Park could be applied as in-lieu credit towards the required fair share fee for park and recreational improvements. The intent of the fair share fee is to provide funds for public capital improvement projects in order to mitigate regional impacts of the development. Since maintenance of the shoreline park is not considered a capital improvement, this cost does not qualify as in-lieu credit. The following summary provides the corrected amount of fair share credits available: Parks and Recreation: Credit from Phases 1 and 2 ($3,490.85 x 18) $ 62 835.30 Credit from Shoreline Park Land Value&Improvements $3,486,182.00 TOTAL CREDITS $3,549,017.30 Police: Credit from Phases 1 and 2 ($168.40 x 18) $ 3,031.20 TOTAL CREDITS $ 3,031.20 "Exhibit 4" SCANNED wH coholammnadepi m Hawaii County is an tquai Opportunity Provider and Employer .tannin c•h.w•'t IH 4 2012 .0 Exhibit B �`ui p i 'au■Y Mr. Sidney Fuke August 23, 2012 Page 2 Fire: Credit from Phases 1 and 2 ($332.61 x 18) $ 5,986.98 TOTAL CREDITS $ 5,986.98 Solid Waste: Credit from Phases 1 and 2($145.62 x 18) $ 2,621.16 TOTAL CREDITS $ 2,621.16 Roads: Contribution towards the Mamalahoa Bypass Construction $9,408,800.00 Contribution for Signal Improvements at Haleki'i Street $ 290,000.00 Credit from Phases 1 and 2 (3,101.68 x 18 lots) $ 55,830.24 TOTAL CREDITS $9,754,630.24 Fair Share Requirement-Phase 1 ($3,101.68 x 261) $ 809,538.48 Fair Share Requirement-Phase 2($3,101.68 x 98) $ 303,964.64 TOTAL CREDIT BALANCE $8,641,127.12 Please note that fair share contributions will continue to be required for future phases of the Mai' project and shall continue to be adjusted annually beginning three years after the effective date of the change of zone,based on the percentage change in the Honolulu Consumer Price Index (HCPI). The credits listed above can be applied to the fair share requirements for future phases. Should you have any questions regarding the fair share contribution, please feel free to contact Bethany Morrison of this department at 961-8138. Sincerely, OAP BJ LE HE TOD 1 j?.}-Planning Director BJM:bjm P:\wpwin601Bethany\Fair Share\Hokulia Phase 2,Amendment 6 FS Credits revised 82112.doc xc: Planning Department-Kona Office Ms.Bethany Morrison,Long Range Planning Division SUB-07-000589 Exhibit B R-1091 STATE OF HAWAII BUREAU OF CONVEYANCES RECORDED DEC 29, 1999 03 :00 PM Doc No(s) 99-20626A ./s./CART, T. WATANABE ACTT N(: REGISTRAR OF CONVEYANCES LAND COURT SYSTEM REGULAR SYSTEM Return by Pickup To: Mail CARLSM[TH BALL 1001 Bishop Street, Suite 2200 Honolulu, Hawaii 96813 Attention: Eric A. James I elephonc: 523-2500 TITLE OF DOCUMENT: GRANT OF EASEMEN T AND COVENANTS PARTIES TO DOCUMENT: ---- GRANTOR: 1250 OCEANSIDE PARTNERS GRANTEE: COUNTY OF HAWAII !- 25 Aupuni Street Hilo, Hawaii 96720 'I AX MAP KEY(S): (3)8-1-004:portion of 3 (This document consists o136 pages.) "Exhibit 5" Exhibit B GRANT OF EASEMENT AND COVENANTS THIS INDENTURE, made this /G day ofI6G1- , 1999, by and between the 1250 OCEANSIDE PARTNERS, a Hawaii limited partnership, whose principal place of business and post office address is 78-6831 Alii Drive, Suite K-15, Kailua- Kona, Hawaii 96740, hereinafter called "Grantor", and the 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, hereinafter called "Grantee". WITNESSETH: WHEREAS, Grantor owns the fee simple title to the parcels of land described in Exhibits "A" and "B" attached hereto and made a part hereof; and WI IEREAS, in connection with Grantee's approval of Ordinances 96-7 and 9- 68 of the County of Hawaii, and Special Management Area Use Permit No. 345, Grantor is required to satisfy certain public access conditions to Kainaliu Bay and its adjacent shoreline; and WHEREAS, in accordance to the aho\c referenced Ordinances and Use Permit, Grantor has prepared, and Grantee has approxcd that certain Shoreline Park Management and Public Access Plan dated November. 1998 (the "Plan") relating to the development of the shoreline park area described therein (the "Park"); and WHEREAS, Grantor desires to satisfy the aluresaid public access conditions for the Park by granting to Grantee the casement rights herein granted, and undertaking the covenants set forth herein. upon and auhlect to the follo‘N Me terns and conditions. Exhibit B NOW, THEREFORE, this Indenture witnesseth that: I. Grant of Easement. Grantor, in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration to it paid, receipt whereof is hereby acknowledged, does hereby grant and convey unto the Grantee a perpetual nonexclusive easement for use by the general public for the purposes described in Sections 2 and 3 below, on the terms and conditions herein set forth, over, across and through the easement areas more particularly described in said Exhibit "A" ("Easement Area A") and in said Exhibit "B" ("Easement Arca B"), both of which arc attached hereto and incorporated herein by reference. TO HAVE AND TO HOLD the sante unto the Grantee, its successors and assigns, forever. 2. Use of Easement Area A. Effective upon Grantor's completion of the Park Improvements (described in Section 4. below) (or portions thereof), Grantee and the general public shall have the right to use the portions of Easement Area A where such Park Improvements have been completed, subject to the limitations set forth herein, solely for the purpose of(i) ingress, egress to the portion of Easement Arca B where the Park Improvements have been completed, and (ii) parking of Motor chides used for such purposes in the parkinu, stalls provided for public use, as more fully shown on Exhibit "A-1 ". 3. Use of Easement Area B. Effective upon Grantor's completion of the Park Improvements (or portions thereof), Grantee and the general public shall have the right to use the portions of Easement Area B where such Park Improvements have been completed. subject to the limitations set I rth herein, solely for recreational purposes in accordance v ith Exhibit B the Plan. Without limiting the foregoing, no portion of Easement Area B shall be used, pursuant to this Grant of Easement and Covenants, in any manner for vehicular purposes including without limitation, use by bicycles, mopeds, scooters, motorcycles or other wheeled vehicles. 4. Construction of Improvements. The Grantor shall construct on Easement Areas A and B the parking and other park improvements required by the terms and conditions of Paragraph K of County of Hawaii Ordinance No. 96-7 and Paragraph H of County of Hawaii Ordinance No. 96-8, as same may be amended from time to time (collectively the "Park Improvements"), within the time periods required by such Ordinances. Grantor will provide the Grantee with written notice as portions of the Park Improvements are completed, and upon such notification, such portions of the Park Improvements shall then be made available for use by Grantee and the general public as set forth in Sections 2 and 3 above. Prior to such notice, Grantee and the general public shall not have any right to use or otherwise go o‘cr, across or through the portions of Easement Areas A and B that have not been improved by Grantor as provided herein. �. Maintenance of Easement Areas. The Grantor shall maintain Easement Areas A and B, including, without limitation, the maintenance and repair of the Park Improvements. The Grantor shall have the right, from time to time, to delegate this maintenance responsibility to third parties includin , without limitation. HokuIi'a Commumt) Association. inc., a Hawaii nonprofit corporation. 6. Grantor's Reservation of Riehts. Grantor. its successors and assigns, shall retain and reserve the ri,ht to use Easement Aieas ;\ and B. before and after construction 4. Exhibit B of the Park Improvements, for purposes of installing or maintaining utilities or other improvements that may be located on, under or adjacent to said Easement Areas and to utilize said Easement Areas for purposes connected with the development and operation of the Hokuli'a planned community and the adjoining lands, as may be necessary or appropriate. 7. Control and Regulation of Easement Areas. The use of Easement Areas A and B by Grantee and the general public shall at all times be strictly in accordance with the Rules and Provisions attached hereto as Exhibit "C", as amended from time to time, and incorporated herein by reference ("Rules"). In the interest of preserving the safety, security, health and well being of all persons using Easement Areas A and B, and the adjacent lands and uses, the Grantor, or such entity as the Grantor may designate and appoint ("Management"), shall have the full right and authority to enforce the Rules in Easement Areas A and B, and to take all actions permitted in the Rules in the event of any violation of the Rules, or the terms of this Grant of Easement and Covenants, by any person or entity using Easement Areas A or B. The Grantor reserves the right to amend the Rules at any time, subject to the prior written approval of the Director of the County of Hawaii Planning Department, which approval may not be unreasonably withheld. 8. Restrictions on Access. Management shall have the right to control or prevent or limit access to portions of Easement Area B that, ill Management's judgement, pose a danger to the public or that require protection from the public to preserve the area from overuse. Management shall also hay e the right to restrict access to Easement Area B during the periods that the public parking area shown on Exhibit "A-1" is full. Management shall S. Exhibit B also have the right to control or prevent access to Easement Areas A or B in the event of a County or State declared emergency. 9. Statutory Authority. The Grantor and Grantee agree that this Grant of Easement and Covenants is intended to comply with Chapter 205A, as amended, of the Hawaii Revised Statutes. The Grantor and Grantee further agree that the general public's use of Easement Areas A and B for the purposes permitted hereunder constitutes use for "recreational purposes" within the meaning of the Hawaii Recreational Use Statute, Hawaii Revised Statutes Chapter 520. 10. Satisfaction of Conditions. The Grantee hereby acknowledges and agrees that the execution and delivery of this Grant of Easement and Covenants by the Grantor, and the Grantor's performance of its obligations hereunder, shall satisfy the public access conditions for the Park that are contained in County of Hawaii Ordinance Nos. 96-7 and 96-8, and Special Management Area Use Permit No. 345 issued to Grantor. This Grant of Easement and Covenants shall terminate automatically(a) if County of Hawaii Ordinance No. 96-7 or No. 96-8 is repealed, or ifthe lands described therein are otherwise rezoned, or (b) if Special Management Arca Use Permit No. 345 is rex oked or rescinded. 11. Abandonment. The Grantee may voluntarily abandon all or any portion of the Easement Areas, which abandonment may he accomplished by resolution of the Council of the County of Ilawaii, and upon such abandonment the easement granted herein and the obligations imposed hereunder with respect to the Easement Areas or the portion thereof so abandoned and which has been described in said resolution shall thereupon terminate. 6. Exhibit B 12. Clearing of Grantor's Title. In the event of abandonment or termination of this Grant, the Grantee will execute and acknowledge an appropriate instrument evidencing the same, in proper recordable form provided by Grantor. 13. Condemnation. In the event the Easement Areas shall be taken or condemned in whole or in part by any authority having the power of eminent domain, including the Grantee,the use of the Easement Areas allowed by this Grant of Easement and Covenants shall not be considered to he evidentiary of the value of the Easement Areas, and the Easement Areas shall have the same value as the land adjoining them, and all compensation and damages awarded on account of the condemnation or taking shall be payable to Grantor, without any apportionment to the Grantee. 14. Encumbrances. The Grantee will not commit or suffer any act or neglect whereby the Easement Areas shall at any time become subject to any attachment, judgment, lien, charge or encumbrance whatsoever, and will indemnify, defend and hold Grantor harmless from and against all loss, costs and expenses, including reasonable attorneys' fees with respect thereto. The Grantee shall promptly discharge or cause to be discharged every attachment,judgment, lien, charge or encumbrance of any nature that may be filed against the Easement Areas or on account of the Grantee's use of the Easement Areas. Should any claim or lien be filed against the Easement Areas. or any action or proceeding be instituted affecting the title to the Easement Areas, or imposing an obligation on Grantor to the knowledge of the Grantee, the Grantee shall give Grantor written notice thereof as soon as the Grantee obtains knowledge thereof. Notwithstanding the above, the restrictions against encumbrances contained herein shall not apply to any civil fines, liens or other assessments 7 Exhibit B made by Grantee against the Easement Areas based upon the failure of Grantor to comply with applicable permits, laws or regulations with respect to the Park. 15. Construction. The terms "Grantor" and "Grantee" as used herein shall mean and include the Grantor and Grantee abo\e named, respectively, and their respectiN e successors in trust, successors and assigns. The headings of the paragraphs herein are inserted only for convenience and reference and shall in no way define, describe or limit the scope or intent of any provision of this agreement. No party shall be deemed the drafter of this instrument. If this instrument is ever construed by a court of law, such court shall not construe this instrument or any provision hereof against any party as drafter. 16. Assignment. The Grantee's rights under this Grant of Easement and Covenants may not be assigned.. 17. Governing Law. This Grant of Easement and Covenants shall be governed by the laws of the State of Hawaii. 18. Modification. This Grant of Easement and Covenants shall not be modified except by an instrument in writing signed by Grantor and Grantee. 19. Entire Agreement. It is expressly understood and agreed that nothing in this Grant of Easement and Covenants or the use granted herein shall be construed to convey any rights to any person or persons, including the Grantee, by implication or otherwise, except to the extent expressly granted herein. Exhibit B IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. 1250 OCEANSIDE PARTNERS By RED HILL 1250, INC. Its Genera artn r or By. . . : S Its VICE-PRESIDENT "Grantor" APPROVED AS TO FORM: COUNTY OF HAWAII 2rrir7 By atiLDeputy Corporattoun I Mayor (3C24/14 "Grantee" Exhibit B STATE OF HAWAII ,, ) ss. CITY AND COUNTY OF ) On this fir-`' day of_:.,p rr\bcr , 1999,before me personally appeared Pc Lyc.-,, L u=. -��ti.cry S , to me personally known/proved to me on the basis of satisfactory evidence, 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. /(4, ra‘t dlee.aseseN6 dit( gitIT 1 tr ( Name > c ti kftliLi P* £ Notary Public, State of Hawaii 4--onmitto��� My commission expires: k ), .;GC= Exhibit B STATE OF HAWAII ) SS. COUNTY OF HAWAII ) On this .$ day of (3 V1t 1949 before melte NE-S•13gsirnii1, a duly commissioned and sworn Notary Public in and for the State of Hawaii, personally appeared STEPHEN K. YAMASHIRO, 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 on behalf of the COUNTY OF HAWAII by authority given to said Mayor of the County of Hawaii by Section 5-1.3(g) of the County Charter, County of Hawaii (1991), as amended; and said STEPHEN K. YAMASHIRO acknowledged said instrument to be the free act and deed of said COUNTY OF HAWAII. In witness whereof, I have hereunto set my hand and affixed my official seal on the day and year last above written. [Seal] - •1?).sle-kru--a(). N-atary ublic, State of Hawaii - mission expires: C.-sLitAg. n, , ttz5 . Rerfm,1l Exhibit B DESCRIPTION Hokuli'a Shoreline Park Easement A Being a portion of Grant 1651 to Charles Hall Situated at Hokukano 1 s` and 2nd, North Kona, Island of Hawaii, Hawaii Beginning at the Northeast corner of this parcel of land, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 2,863.08 feet North and 1,932.01 feet West, thence running by azimuths measured clockwise from True South: 1. 63° 00' 146.46 feet along the remainder of Grant 1651 to Charles Hall; 2. 26° 00' 214.09 feet along the remainder of Grant 1651 to Charles Hall; 3. 343° 30' 45.00 feet along the remainder of Grant 1651 to Charles Hall; 4. 77° 00' 310.00 feet along the remainder of Grant 1651 to Charles Hall; Thence along Shoreline (Vegetation Line) as of February 10, 1984, the direct azimuth and distance between points being: 5. 188° 25' 50" 397.97 feet; 6. 272° 45' 455.80 feet along Hokukano Village to the point of beginning and containing an Area of 2.59 Acres, more or less. Note: Description compiled from available data. 680 Ala Moana Boulevard �� ED -S÷ BELT COLLINS HAWAII LTD. First Floor PROFLICENSESSIONAL r. Honolulu, Hawaii 96813 LAND SURVEYOR December 3, 1999 No. E 88 � P Licensed Professional Land Sur yor �wAll, U ' Certificate Number 4188 Exhibit A Page 1 of 2 Exhibit B Together with non-exclusive easements for access purposes over and across Roadway Lots 14, 15, 16, and 17, inclusive, and Easement Area 14, as shown on File Plan No. , filed in the Bureau of Conveyances of the State of Hawaii, Exhibit A Page 2 of 2 1344944.1.051730-3 Exhibit B pIiiiiiill i _______ itirrA <� gill ,1. 1111A 11141 a alIN tura ler fikausitgullin am.IrAr_k___AVA41,11%1 W---IfirrallPitli ar140140411 I gel% 11011Ai IF "04 4 1444 r 4ItVW MU: hp 0 4/4,4P4P4.44,sour.....ibb. Illrmal 1 4frVall 14'61 t 1111111,0Z11411,411-41 Faillairalegli 411111111110 AllaT .bhii � EASEMENT 8 ,w''410-A 'i'' �f'3'j'T'`_. �� Y EXCLUSION(Old Trail) w`-'`r•=:R: .. State of Hawaii(owner) PART 1 i r� =::i:7:= ";!•. ,...:.,�� 1:01.11N iri r»uLeAtvi..ail.ri••.::: \Iii •::�. Pat cla K.Wall ':: � ':= (Owner) fi»r'`:?:+'a_a__s.;3i:_.s_°f y�� : qia State of Hawaii ,‹a r?Trrr:-r;_,�,r, (Owner) iii::::,::: ......7,:. ekif EASEMENT A $ A EASEMENT B,PART 2 HOKULI'A SHORELINE PARK EASEMENTS DECEMBER 6, 1999 I /► LEGEND �,► EASEMENT A PIO"TH 1000 000 0 1000 MVP,t/:: EASEMENT B " a �� =. -•., EXHIBIT A-1 GRAPHIC SCALE:t in.=t800 R Exhibit B DESCRIPTION Hokuli'a Shoreline Park Easement B, Part 1 Being a portion of Grant 1651 to Charles Hall Situated at Hokukano 1" and Honuaino 4`", North Kona, Island of Hawaii, Hawaii Beginning at the South corner of this parcel of land, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 3,386.18 feet North and 1,381.18 feet West, thence running by azimuths measured clockwise from True South: 1. 193° 00' 384.67 feet along "Hokukano Village"; 2. 275° 46' 30" 146.99 feet along the remainder of Grant 1651 to Charles Hall; 3. 180° 50' 207.12 feet along the remainder of Grant 1651 to Charles Hall; 4. 92° 50' 30" 103.81 feet along the remainder of Grant 1651 to Charles Hall; 5. 193° 00' 80.00 feet along "Hokukano Village" to Shoreline (Vegetation Line) as of February 10, 1984; Thence along Shoreline (Vegetation Line) as of February 10, 1984, the direct azimuth and distance between points being: 6. 200° 50' 37" 719.11 feet; 7. 266° 10' 60.01 feet along the remainder of Grant 1651 to Charles Hall; 8. 176° 10' 101.90 feet along the remainder of Grant 1651 to Charles Hall; 9. 266° 10' 207.41 feet along the remainder of Grant 1651 to Charles Hall; 10. 1° 00' 307.60 feet along the remainder of Grant 1651 to Charles Hall; 11. 18° 00' 497.68 feet along the remainder of Grant 1651 to Charles Hall; 12. 30° 19' 324.00 feet along the remainder of Grant 1651 to Charles Hall; Exhibit B Page 1 of 7 Exhibit B 13. 42° 00' 513.00 feet along the remainder of Grant 1651 to Charles Hall to the point of beginning and containing an Area of 7.67 acres, more or less. Note: Description compiled from available data. 'C W CIJNNi 680 Ala Moana Boulevard 4Q '�', BELT COLLINS HAWAII LTD. First Floor Om LICENSED q Honolulu, Hawaii 96813 Q PROFESSIONAL LAND December 3, 1999 * SURVEYOR * �! U✓� y No.4188 Licensed Professional La d •urveyor 9{11.411 U g p' Certificate Number 4188 Exhibit B Page 2 of 7 Exhibit B DESCRIPTION Hokuli'a Shoreline Park Easement B, Part 2 Being all of Grant 13,000 to Maud A. Greenwell and portions of Grant 1651 to Charles Hall, Grant 1745 to John Cavanagh, Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to the American Board of Commissioners for Foreign Missions And Royal Patents 4386 and 7146, Land Commission Award 8452, Apana 11 to A. Keahokalole Situated at Hokukano 1" and 2nd, Kanaueue 1" and 2"d, Halekii, Keekee 1" and 2"d, Ilikahi, Kanakau 1" and 2nd Kalukalu 1s` 2nd and 3'd and Onouli 1", North Kona and South Kona, Island of Hawaii, Hawaii Beginning at the Northeast corner of this parcel of land, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 2,561.02 feet North and 2,143.58 feet West, thence running by azimuths measured clockwise from True South: 1. 343° 30' 411.00 feet along the remainder of Grant 1651 to Charles Hall; 2. 348° 20' 1,123.00 feet along the remainder of Grant 1651 to Charles Hall; 3. 317° 00' 256.00 feet along the remainder of Grant 1651 to Charles Hall; 4. 300° 00' 641.00 feet along the remainder of Grant 1651 to Charles Hall; 5. 316° 00' 441.00 feet along the remainder of Grant 1651 to Charles Hall; 6. 282° 00' 259.00 feet along the remainder of Grant 1651 to Charles Hall; 7. 260° 00' 573.00 feet along the remainder of Grant 1651 to Charles Hall; 8. 247° 00' 304.00 feet along the remainder of Grant 1651 to Charles Hall; 9. 232° 00' 205.00 feet along the remainder of Grant 1651 to Charles Hall; 10. 329° 00' 221.00 feet along the remainder of Grant 1651 to Charles Hall; Exhibit B Page 3 of 7 Exhibit B 1 1. 359° 00' 543.00 feet along the remainders of Grant 1651 to Charles Hall and R.P. 1670 to John D. Parish on a portion of L.C. Aw. 387, Part 4, Section 2 to A.B.C.F.M.; 12. 1° 00' 353.00 feet along the remainder of Grant 1745 to John Cavanagh; 13. 335° 00' 489.00 feet along the remainder of Grant 1745 to John Cavanagh; 14. 2° 42' 30" 1,190.00 feet along the remainder of Grant 1745 to John Cavanagh; 15. 355° 16' 440.00 feet along the remainder of Grant 1745 to John Cavanagh; 16. 341 ° 20' 606.00 feet along the remainder of Grant 1745 to John Cavanagh; 17. 351 ° 27' 400.00 feet along the remainder of Grant 1745 to John Cavanagh; 18. 2° 19' 313.00 feet along the remainders of Grant 1745 to John Cavanagh and R.P. 4386 and 7146, L.C. Aw. 8452, Apana 11 to A. Keohokalole; 19. 332° 30' 327.00 feet along the remainder of R.P. 4386 and 7146, L.C. Aw. 8452, Apana 11 to A. Keohokalole; 20. 340° 51' 628.00 feet along the remainder of R.P. 4386 and 7146, L.C. Aw. 8452, Apana 11 to A. Keohokalole; 21. 329° 00' 452.00 feet along the remainder of R.P. 4386 and 7146, L.C. Aw. 8452, Apana 11 to A. Keohokalole; 22. 340° 00' 180.00 feet, more or less, along the remainder of R.P. 4386 and 7146, L.C. Aw. 8452, Apana 11 to A. Keohokalole to a stonewall; Thence along stonewall, along Grant 2862 to Awahua to Highwater Mark at Seashore, the direct azimuth and distance between points being: 23. 50° 19' 161.21 feet; Thence along Highwater Mark at Seashore for the next two 12) courses, the direct azimuths and distances between points being: 24. 148° 45' 15" 1,704.39 feet; Exhibit B Page 4 of 7 Exhibit B 25. 169° 44' 25' 1,429.95 feet; Thence along top of bluff for the next nine (9) courses, the direct azimuths and distances between points being: 26. 161 ° 12' 287.21 feet to a spike in concrete; 27. 91° 49' 84.67 feet; 28. 35° 01' 110.10 feet; 29. 80° 35' 70.00 feet; 30. 161 ° 50' 115.00 feet; 31. 197° 15' 70.00 feet; 32. 164° 50' 65.00 feet; 33. 239° 50' 110.00 feet; 34. 320° 35' 50.00 feet; 35. 247° 25' 60.00 feet to top of bluff; Thence along top of bluff for the next six (6) courses, the direct azimuths and distances between points being: 36. 199° 50' 85.00 feet; 37. 225° 20' 210.00 feet; 38. 181 ° 15' 135.00 feet; 39. 190° 10' 145.00 feet; 40. 201 ° 45' 115.00 feet; 41. 177° 26' 129.60 feet; 42. 87° 00' 10.00 feet to Highwater Mark at Seashore; Thence along Highwater Mark at Seashore for the next two (2) courses, the direct azimuths and distance between points being: 43. 159° 45' 125.00 feet; 44. 136° 55' 165.00 feet; 45. 67° 25' 50.00 feet to a point at Highwater Mark at Seashore; Thence along Highwater Mark at Seashore, the direct azimuth and distance between points being: 46. 147° 58' 78.30 feet; 47. 175° 30' 15.00 feet along Government Reserve; 48. 74° 40' 108.60 feet along Government Reserve; Exhibit B Page 5 of 7 Exhibit B 49. 352° 40' 20.00 feet along Government Reserve to Highwater Mark at Seashore; Thence along Highwater Mark at Seashore, the direct azimuth and distance between points being: 50. 105° 05' 275.00 feet; 51. 252° 30' 45.00 feet to top of bluff; Thence along top of bluff for the next three (3) courses, the direct azimuths and distances between points being: 52. 146° 35' 89.90 feet; 53. 157° 10' 120.00 feet; 54. 101 ° 30' 166.40 feet; 55. 253° 38' 2.90 feet to Shoreline (Vegetation Line) as of February 10, 1984; Thence along Shoreline (Vegetation Line) as of February 10, 1984, for the next six (6) courses, the direct azimuths and distances between points being: 56. 184° 46' 30" 245.93 feet; 57. 146° 26' 06" 704.73 feet; 58. 133° 48' 40" 1,078.20 feet; 59. 123° 45' 55" 1,152.88 feet; 60. 175° 19' 20" 805.52 feet; 61. 166° 46' 43" 762.75 feet; 62. 257° 00' 310.00 feet along the remainder of Grant 1651 to Charles Hall to the point of beginning and containing a Gross Area of 108.09 Acres, more or less, and a Net Area of 104.71 Acres, more or less, after excluding and deducting the following: L.C. Aw. 7035, Apana 2 to Kaiwaiwa (TMK 8-1-04:6) 0.14 Acre L.C. Aw. 7197, Apana 2 to Kamahele (TMK 8-1-04:7) 0.18 Acre L.C. Aw. 7210, Apana 2 to Kini (TMK 8-1-04:8) 0.08 Acre L.C. Aw. 7212, Apana 2 to Kaiaino (TMK 8-1-04:18) 0.17 Acre L.C. Aw. 8157-C, Apana 2 to Kamakahiona (TMK 8-1-04:16) 0.22 Acre L.C. Aw. 8157-BB to Kalamala (TMK 8-1-04:9) 0.17 Acre L.C. Aw. 8157-E, Apana 2 to Kamaheaiku (TMK 8-1-04:17) 0.10 Acre Exhibit B Page 6 of 7 Exhibit B L.C. Aw. 8455-C, Apana 2 to Kuluiki (TMK 8-1-04:11) 0.25 Acre L.C. Aw. 8455-E, Apana 2 to Pauole (TMK 8-1-04:12) 0.70 Acre L.C. Aw. 8455-F, Apana 2 to lalua (TMK 8-1-04:13) 0.50 Acre L.C. Aw. 8455-G, Apana 1 to Makauwaa (TMK 8-1-04:14) 0.07 Acre L.C. Aw. 8455-H, Apana 2 to Makole (TMK 8-1-04:19) 0.35 Acre L.C. Aw. 8455-I to Nawai (TMK 8-1-04:15) 0.22 Acre L.C. Aw. 9753-B, Apana 2 to Paiwa (TMK 8-1-04:20) 0.23 Acre TOTAL = 3.38 Acres Note: Description compiled from available data. CUNA,// 680 Ala Moana BoulevardO�� LICENSED CS BELT COLLINS HAWAII LTD. First Floor Q PROFESSIONAL p� Honolulu, Hawaii 96813LAND SURVEYOR December 3, 1999 * No.o.41884188 * !�(/ 'S- Licensed Professional Land Su or �All, U P Certificate Number 4188 Exhibit B Page 7 of 7 Exhibit B EXHIBIT C Park Rules and Procedures I. INTRODUCTION A. Purpose The purpose of these rules and provisions are to govern the use and protection of all lands and historical and natural resources within the Hokuli'a shoreline park(Park) area. B. Definitions "Abandoned property" means any and all property, including personal property, items, materials, equipment, fixtures, motor vehicles, or vessels, that have been left unattended for a continuous period of more than twenty-four hours without the written permission of the park management (Management) or its authorized representative. "Animals" mean all animals, wild and domestic. "Authorized representative" means any person authorized by the Management to act for the Management in the administration of these rules and regulations. "Camper" means any person engaged in a camping activity. "Camping" means remaining within a designated camping area during park closing hours or sleeping during nighttime hours on the premises or the use or occupation of the premises by one or more persons who remain or intend to remain on the premises between the hours of twelve midnight and one half hour before sunrise, except persons with special permits or other types or permits or authorization from the management or its authorized representative to remain on the premises for other purposes. "Motor vehicle" means a motor vehicle of any type, including, but not limited to, automobiles, trucks, go-carts, motorcycles, motor scooters,mopeds, dune buggies, or ATVs, whether the vehicle is licensed or unlicensed. "Park area" or "Hokuli'a shoreline park" means property owned in fee by 1250 Oceanside Partners that is described in Exhibits A and B of the Grant of Easement and Covenants to which these rules are attached. "Park management" or"management" means the management entity established by 1250 Oceanside or its legal designee,which is responsible for the management, maintenance, security, and operation of the shoreline park area. 2 Exhibit B "Premises" means any lands within the shoreline park area. "Picnic" means an outing with food provided by members of the group and eaten in the open. "Reasonable conduct" means behavior or activity that is fair, proper,just, moderate and suitable under the circumstances. Such behavior or activity may fairly,justly and reasonably be required of an individual or group of individuals while in the Park. "Recreational trailer" means a vehicle propelled by its own power or by some independent power and used as a dwelling. "Vehicle" means every device in, upon, or by which any person or property is or may be transported or drawn upon a roadway or highway, including mopeds, and other devices moved by human power. "1250 Oceanside" or "Owner" shall mean 1250 Oceanside Partners, the Fee Owner of the Park area, and its successors and assigns. C. Hours of Use The park may be used by the public only between the hours of 7:00 a.m. and 15 minutes after sunset daily; provided, however, that Management may issue night fishing, special use, or camping pemZits pursuant to Section 5 as specified herein. D. Access 1. 1250 Oceanside shall have the right to control or prevent access to the park by all persons whose presence in Management's judgement shall be adverse to the safety, character, or interests of the park or of users of the park. 2. In case of invasion, mob riot, public excitement, or other commotion, Management reserves the right to prevent access to the park during the continuance of the same for the safety of park users and the protection of the property in the park 3. Persons violating the park rules and regulations may be denied subsequent use of the park by Management in its sole discretion, and may be subject to expulsion and penalties, as set forth in Section 4 herein dcscribed. E. Noise Exhibit B All activities conducted at the park shall not exceed a reasonable and prudent noise level, and in no event shall such activities exceed 60 DBA sound pressure level. F. Hazardous Activities No activities shall be conducted in the park that are or may be unsafe or hazardous to any person or property. Management reserves the right to stop any activity within the park that it determines in its sole judgement, has become unsafe or a hazard. G. Obstruction of Passageways No trails or passages in the park shall be obstructed or used for any purpose other than foot trail within the park, or ingress or egress from the park. H. Lost Articles Any person finding lost articles shall deposit them at the Management's office, leaving their name and address. I. Intoxication Management reserves the right to exclude from the park any person who, in Management's judgement, is intoxicated or under the influence of liquor or drugs so as to create a risk to persons or property and said person shall be subject to expulsion and penalties set forth in Section IV herein. J. Standard of Reasonable Conduct Without limiting the generality of any of the park rules and regulations, any activities not covered hereby shall be subject to a standard of reasonable conduct. K. No Liability Neither management nor owner shall be liable for any damage or injury to anyone or anything that may occur as a result of enforcement or failure to enforce these park rules and regulations. L. Nonwaiver Failure to enforce these park rules and regulations on any occasion shall not be construed as a waiver and shall in no way affect Management's right to subsequently enforce these park rules and regulations. 4 Exhibit B M. Lifeguards Neither owner nor Management will be responsible for providing lifeguard services. II. REGULATED ACTIVITIES The following activities are allowed only in designated areas indicated by appropriate signage: A. Picnicking Picnicking or any outing with food provided by members of the group; provided, however, that a permit is obtained when required pursuant to Section V herein. B. Fires All fires (i) shall be confined in barbeque pits designated and provided by Management; (ii) shall not be allowed to burn in a manner that may threaten surrounding shrubs, grass, trees, or other combustible matter, or endanger structures that could be burned, scorched or damaged; (iii)when no longer needed, shall be completely extinguished and coals shall be deposited in designated ash disposal pits provided by Management; (iv) shall not be left unattended. C. Parking All parking of motor or other vehicles shall only be in designate Park parking areas provided,however, that Management may direct persons utilizing the park through the issuance of a permit as set forth in Section V hereof, to park in areas other than those specifically designated for public parking. In the event of an infraction of this rule, violators shall be subject to expulsion and penalties set forth in Section IV herein below, and Management shall be entitled to have the offending vehicle towed to the holding area of a towing service and to charge the owner or driver of the vehicle the full amount of the towing cost. D. Access All vehicular and pedestrian ingress to and egress from the park shall be confined to access ways that have been designated for such purposes; provided, however, that Management may direct persons utilizing portions of the park through the issuance of a permit as set forth in Section V hereof, to utilize access ways other than those specifically designated for public use. III. PROHIBITED ACTIVITIES Exhibit B The following activities are prohibited in the park: A. Alcoholic Beverages Possessing or drinking any alcoholic beverage, except in connection with public gatherings or special events for which permits have been issued in accordance with Section V, hereinbelow. B. Illegal Drugs Possessing or using narcotics, controlled substances, or any illegal drug. C. Disorderly Conduct Disorderly conduct, including but not limited to, fighting, violent or tumultuous behavior, making unreasonable noise or offensive or abusive or threatening utterances or gestures. D. Audio Devices Operating or using any electrical or battery powered audio device, including but not limited to, radios, tape recorders, television sets, amplified musical instruments, compact disc players, and noise producing devices used as electrical generating plants, or other equipment driven by motors or engines in a manner and at times that create excessive noise or annoyance to park users or others outside the park (see Section I.E, Noisc, above). E. Public Address Systems Operating or using public address systems, whether fixed or portable, or vehicle mounted, on land, water or roadways, except when the use or operation is in connection with public gatherings or special events for which permits have been issued by Management in accordance with Section V hereinbelow,or when the use is in conjunction with emergency or rescue operations. F. Communication Equipment Installing or operating aerials, antennas, transmitting or radio, telephone, television or other communication equipment (except hand held portable devices, cellular phones or equipment within vehicles). G. Camping 6. Exhibit B Camping, unless specifically allowed by Management through the issuance of a permit, as set forth in Section V hereof. Camping Permits will provide for a maximum of three (3) nights and successive permits for a particular site must be separated by a minimum of one night. H. Recreational Trailers Using recreational trailers or other camper units. I. Closing Hours Remaining in the park between the closing hours of 15 minutes after sunset through 7:00 a.m. unless specifically permitted by Management through the issuance of a permit, as set forth in Section V hereof. J. Animals Bringing animals into the park, except properly leashed seeing-eye dogs accompanied by their masters shall be permitted. Running at large, herding, driving across, raising or grazing animals. K. Natural Resources 1. Molesting, disturbing, injuring, trapping, taking, catching, possessing, poisoning, introducing or killing any wild bird or animal or disturbing the habitat of any such bird or animal. 2. Gathering or collecting any natural product, including, but not limited to, sea shells, fruits, berries, flowers, seeds, pine cones, driftwood and pebbles for commercial uses or purposes. 3. Destroying, digging, removing, or possessing any tree, shrub, or plant of any kind. 4. Destroying, disturbing, or mutilating any geological feature or digging or removing sand, earth, gravel, mineral, rock fossil, coral or any other substance. L. Bicycles, Skateboards, Roller Skates, Roller Blades Riding bicycles, skateboards, or roller skates blades. M. Horseback Riding Exhibit B Riding horses or any other animal. N. Motorized Vehicles 1. Except on park access roads and designated parking areas, driving or riding vehicles or motorized bikes, including, but not limited to, automobiles, trucks, vans, motorcycles, motor bikes, mopeds, scooters, ATVs, motorized go-carts or trail bikes, and in no event unlicensed vehicles other than those vehicles operated by the park management and used for park operation, management or maintenance. 2. Leaving motor vehicles or other property unattended so as to interfere with the safe and orderly management and use of the park. 3. Abandoning motor vehicles (as defined in '290-1 of the Hawai'i Revised Statutes, as amended)or other property(as defined in '171-1 of the Hawai'i Revised statutes, as amended). 4. Operation of motorized hobby crafts such as aircraft, automobiles, and similar motorized vehicles. O. Gambling Gambling, betting, or wagering money on the outcome of a game or contest or other event. P. Aircraft 1. Landing or launching of aircraft, including, but not limited to, airplanes, airships, balloons, gliders, hang gliders, helicopters, parachutes, dirigibles, and other similar means of conveyance. 2. Kite flying Q. Metal Detectors Possessing or using a mineral or metal detector, magnetometer or other metal detecting device. R. Agricultural Activities Cultivating soil, planting or producing crops, farming, or any other agricultural activity; provided, however, that Management may conduct landscaping or other ongoing maintenance, cultural, demonstration or educational activities. 8. Exhibit B S. Nudity Nudity, which shall be defined as the uncovered post-pubertal human genitals, pubic areas, or the nipples or areola of post-pubertal human female breasts. T. Golf Golfing, hitting or driving golf balls. U. Firearms Possessing or using firearms, including, but not limited to,bow and arrows, crossbows, firearms, pellet or BB guns, power heads, bang sticks, slingshots, or other implements designed to discharge missiles. V. Soliciting Soliciting, canvassing, begging or peddling of any kind, including,but not limited to, displaying merchandise, demanding or requesting gifts, money or services, or dispensing information. W. Rubbish 1. Bringing, carrying or transporting garbage, trash, rubbish,refuse or waste from outside the park for deposit or dumping in the park. 2. Burning of trash. 3. Draining or dumping garbage, trash, rubbish, refuse or waste other than in receptacles provided for these purposes. 4. Littering or scattering rubbish or other materials in places other than trash receptacles provided in the park. X. Electrical Equipment Using portable motor driven electrical generating plants, pumps, compressors, or other portable motor driven machines, except through the issuance of a permit by Management. Y. Explosives Possessing or using explosives, including, but not limited to, fireworks and firecrackers. 9. Exhibit B Z. Lodging Establishing a temporary or permanent lodging or residence other than that which may be established by Management and permitted by the State and County for the purpose of providing a caretakers'residence. AA. Boats 1. Transporting, bringing or carrying boats (including sailboats,powerboats, canoes, kayaks,jet skis, and/or motorized rafts), or any other aquatic vehicles onto, into or through the park. 2. Moving, tying, storing, repairing or cleaning any boat, canoe, raft or other vessel, except through the issuance of a permit by Management. BB. Water Pollution/Contamination Polluting or contaminating any water used for drinking purposes, natural body of water, pools, ponds or the ocean. CC. Toilet Facilities Urinating or defecating other than in the designated toilet facilities provided at the park. DD. Archaeological/Historical Resources 1. Appropriating, damaging, removing, excavating, disfiguring, defacing or destroying objects of antiquity, prehistoric ruins and monuments; provided, however, that Management may permit, with the concurrence of the State Department of Land and Natural Resources, qualified persons or institutions to examine ruins, reestablish archaeological sites, excavate archaeological sites or gather objects of antiquity for safe keeping. 2. Destroying, defacing, or removal of any natural or historical feature or natural or historical resource. EE. Monuments Installing any monument, memorial, tablet, or other commemorative installation. FF. Vandalism 10. Exhibit B Intentionally or wantonly destroying, injuring, defacing, removing, disturbing or possessing in any manner any geologic feature, objects of antiquity, prehistoric ruins, monuments or feature, public or private building, sign, equipment, monument, marker or other structure. IV. PENALTIES A. Violation of Rules Any user or potential user of the park shall be subject to immediate exclusion and/or expulsion from the park if, in Management's sole determination: 1. A violation of the rules and regulations set forth herein has occurred. 2. Such action is necessary to enforce any provision in the rules and regulations set forth in this document. 3. Said user or potential user has failed to obey orders of park management personnel and/or orders of Federal, State or County law enforcement officers. B. Penalties Any violation of these park rules and regulations shall subject the violator to: 1. Civil and for criminal liability for damages to public or private property and/or confiscation by appropriate governmental authorities of any prohibited materials, machines, tools, vehicles or equipment. 2. Permanent prohibition from future entry into and use of the park facilities. V. PERMITS A. Classification of Permits Permits shall be required for the following uses and activities in the manner specified herein below: 1. Group Use Permit: Any group larger than twenty-five members that desires to picnic in the park shall be required to obtain a Group Use Permit from Management. 2. Special Use Permit: 1I Exhibit B a. Special uses shall be permitted only with a Special Use Permit issued by Management. Special uses are group functions, other than group picnics, considered compatible with the functions and purposes of each individual area, facility or unit of the park, including, but not limited to, assemblies, celebrations, festivals, gatherings, meetings, pageants, parades, public expressions of views, rallies, shows, weddings, filming or photography sessions and other community events or activities. b. Before any motion picture film, video recording, television production, or sound track is made that involves the use of professional casts,models, settings, or crews, by any person other than bona fide newsreel or news television personnel, a Special Use Permit must be obtained from Management that shall be subject to terms and conditions set by Management. c. Before any still photograph may be taken by a commercial photographer for commercial purposes, a Special Use Permit must be obtained from Management that shall be subject to terms and conditions set by Management. B. Camping Permit: All persons, groups, organizations, or associations desiring to camp within the park area shall obtain a Camping Permit from the Management authorizing the use of specific camping areas. However, the following provisions shall apply to camping: 1. Use of recreational trailers is prohibited within the park area. 2. The Management shall establish the location and term of the camping activity. 3. Installation or construction of permanent camping facilities is prohibited except by the Management with authorisation from the Board of Land and Natural Resources. 4. Digging or leveling of the ground at any campsite is prohibited. 5. Camping equipment shall be completely removed and the campsite cleaned before departure from the site. 6. Night Fishing Permit: Access to the park after closing hours (after 15 minutes post sunset) for purposes of night fishing and for spearing shall be permitted only with a Night Fishing Permit issued by Management. 1?. Exhibit B C. Authority to Use Permits Management shall have the exclusive authority to issue Group Use, Special Use, Camping, and Night Fishing Permits("Permits"). Management shall be entitled to impose conditions upon the issuance of Permits and for may impose an administrative fee for requested Permits. The following conditions shall apply to all Permits: 1. Permits shall be issued on a first come, first serve basis. 2. All responsible persons twenty-one years of age or older shall be eligible to secure Permits. 3. Permits shall be obtained by submitting an application in person or by mail to Management. 4. Requests for Group Use Permits and Special Use Permits shall be submitted to Management a maximum of thirty (30) days before the date of the use being requested and shall include the date, time, duration, nature and place of the proposed event, an estimate of the number of persons expected to attend, and a statement of equipment and facilities to be used in connection therewith. If the event is for the purpose of raising funds, a statement of how the profits will be used is required. Requests for Night Fishing Permits shall include the same information, but shall be submitted to Management a minimum of five (5) working days and a maximum of thirty(30) days before the date of the use being requested. Requests for Camping Permits shall include the same information, and shall be submitted to Management a minimum of five (5) working days and a maximum of thirty (30) days prior to the date of the use being requested. 5. Management shall have fifteen (15) days from receipt of an application for a Group Use Permit or Special Use Permit, five(5) days from receipt of an application for a Camping Permit, and three (3)days from receipt of an application for a Night Fishing Permit, to either grant or deny the application. 6 Permits shall not be transferrable. 7 Persons or organizations to whom permits are issued (the Apermittee@) are bound by the Permit conditions stipulated on or attached to the permit, and any applicable Federal, State and County laws, ordinances and rules and regulations. 8 All permittees shall, upon request, show the Permit to any law enforcement officer, security personnel, or employee of Management. 1 Exhibit B 9 Other procedures, terms and conditions deemed necessary by Management may be adopted by Management in order to carry out the provisions of this section,or any applicable Federal, State and County laws, ordinances and rules and regulations. 10 As a condition of granting a Permit by Management, the permittee shall agree to hold the Owner and Management harmless and indemnify Owner and Management from any liability or damages resulting from the use of the park by the permittee or by any of the permittee—s guests. Each Permit shall specifically provide the following: "The permittee shall indemnify, defend and hold harmless Owner and Management, its officers, directors, stockholders, attorneys, agents, servants, representatives, employees, corporate affiliates, predecessors and successors interest(collectively, the "indemnitees") from and against any and all past, present and future claims, actions, causes of action, suits at law or inequity, liabilities, demands, losses, decrees,judgements, awards, liens, costs, fees, damages, expenses(including attorneys' fees) and compensation of whatsoever kind or nature, resulting from, arising out of, connected with, or traceable either directly or indirectly to any and all matters relating to the use of the park by the permittee or by an of the permittee's guests. The permittee shall reimburse indemnitees or pay over to indemnitees immediately when due all judgements and claims for damages that indemnitees shall pay or become liable to pay by reason of such use of the park by the permittee or by any of the permittee's guests, and will make such payment to indemnitees as soon as indemnitees become liable therefore, whether or not indemnitees shall have paid out such or any part thereof." 11 Permits shall set forth the day and time the permittee shall be allowed to remain in the park. 12 Management may require the permittee at the permittee's own cost, to provide licensed security services, in the interest of public safety and welfare and for the protection of property. 13 Requests for Permits shall each be considered on their own merits, including their effect on the park, facilities, and the public's use and enjoyment thereof. 14 The Permit may contain conditions relating to protection and use of the park area for the purposes for which it is maintained, and reasonable limitations on the size of the group, time and area within which the event is being permitted. 15 The Permit may contain conditions relating to parking and access for the use being permitted. DO Denial of Permit Applications Exhibit B An application for a Permit may be denied when: 1 The Park or Park facilities are closed or will be closed because of damages, or because of scheduled or ongoing construction, repairs or maintenance activities, dangerous weather conditions; County or State declared emergency or because of other reasons. 2 Natural or civil disturbances occur or threaten to occur, including, but not limited to, tsunamis, floods, earthquakes, storms, riots, and demonstrations. 3 There are inadequate facilities or space to accommodate the needs of the applicant for the permit. 4 The applicant has a prior record of noncompliance with permit conditions or violations of park rules and regulations. 5 The event will present a clear and present danger to public health and safety. 6 A prior permit for the same time and place has been or will be granted. 7 The event will significantly interfere or conflict with the public's general use and enjoyment of the park 8 The event will threaten, endanger, or disturb natural and historical resources of the park. 9 Applications or requests for permits are not received by Management within the time periods specified in Section V.B.4 herein. 10 The proposed event includes activities that may be a violation of any Federal, State or County law or ordinance. ED Cancellation of Permit A Permit may be canceled or terminated at any time without advance notice when: 1 A state of emergency is declared by Management or governmental authorities. 2 Natural or ciN it disturbances occur or threaten to occur, including, but not limited to, tsunamis, floods, earthquakes, storms, riots, demonstrations and employee strikes. 15. Exhibit B 3 A permittee creates a clear and present danger to public health and safety. 4 A permittee violates permit conditions, provisions of these park rules and regulations, or any Federal, State or County law or ordinances. IO Exhibit B y lilt __ , çi 161.1.' lieli ----4 1 11014 1. SokiiR, 1 I c „,;,:_iiiiii 401 1 Ili 7.4-t, .10.‘, _ \ ,,,s.;,,,,,,,,,,,,,,,,,,, ,:, , ovi 1 s \ Ill.„,,Imi 7 ...„,liht.ti._\17,4 tik tipotati",:„...,N4 Ililli '1'460 A -41 P ,d-i, i-t1- 1 _,----,1" . :: W.- Si'll'." 17:\111 V V -tr,it I- ill w��0. `13 :1-1 i : r27 Ili �: 1��ii I� r / tt* la. llei •El. ‘ w ii• ,,;, , E��;: Al i''i Drive tyrri Haleki'i Street p ! illt ....�:: I -= 1 �All'' V IC ' illi -dr cn wit proloose ,_,,,ii:.* : _,e, ,,,4„.., : co c ' ' '‘Ilikii "Connector Road" o T= TMK: (3) 8-1-030:055 a a Ili r� r , "Connector Road" k TMK: (3) 8-1-004:Por. 070 . me 4 F*4 reit'I:I Rill _41,, ,----`---...._ a ,.. Hokulia Project Area Ackerman Ranch Lands F ibit R Approx.Area Rezoned by Ord.96-8 kbit " 1250 Oceanside FEE OWNER'S LETTER OF AUTHORIZATION Tax Map Key: (3) TMK: (3) 8-1-004:070 and 8-1-030:055 Hokukano 1st- Onouli 1st,North and South Kona Island, County and State of Hawaii The undersigned are the fee owners of the real property above-identified, and hereby authorize Carlsmith Ball, LLP to communicate with, apply for, execute and process an amendment to Ordinance No. 96-8 with the County of Hawaii, and to participate in proceedings related to said real property. A photostatic or facsimile copy of this executed authorization shall also be considered as effective and valid as the original. 1250 Oceanside, LLC a Delaware Limited Liability Company By Name: Duane Grimsman Its: Senior Vice President Subscribed and swo' (or affirmed)before me this day of , 2020. Name: NOTA' CERTIFICATION STATEMENT Document Identification or Descriptio FEE OWNER'S LETTER OF AUTHORIZATION Document Date: No. of Pages: Jurisdiction(in which notarial act is performed): Signature of Notary Date of Notarizati. q and Certification Stateme (Notary Stamp or Seal) Printed Name of Notary 0 1 • 4a Ci,2S 4814-2083-0641.1.051730-00047 Exhibit B CALIFORNIA JURAT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not _the truthfulness,accuracy,or validity of that document. State of California County of -PkAGkr Subscribed and sworn to (or affirmed) before me on this 2. day of S COAtAark. , 20 2 , by .b1alJi1 e Grivi'H.c nAix^ proved to me on the basis of satisfactory evidence to be the person(- who appeared before me. AUDRA 1.ANDERSON *;,-, COMM. #2156723 z •S�_,.;.• Notary Public•California c Placer County 4 Mx Comm.E9irea Jurte 16,2020 Signature (Seal) Optional Information Although the informat on in this section is not required by law,it could prevent fraudulent removal and reattachment of this jurat to an unauthorized document a d may prove useful to persons relying on the attached document Description of Attached Document Additional Information This certificate is attached t a d cument titled/for the purpose of Method of Affiant Identification CG � (� Proved to me on the basis of satisfactory evidence: ee Of�r S Le0.0 orm(s)of identification 0 credible witness(es) a,W)&n DrNotarial event is detailed in notary journal on: Page# 3 if Entry# Notary contact: Other tgffiant(s)Thumbprint(s) ❑ Describe: containing Z pages,and dated O Copyright 2007-2015 Notary Rotary,Inc. PO Box 41400,Des Moines,IA 50311-0507 All Pic s Reserved.Item Number 101884 Please contact your Authorized Reseller to purchase copies of this form Exhibit B FEE OWNER'S LETTER OF AUTHORIZATION Tax Map Key No.: (3) 7-9-012:004 Honuaino 3rd - Hokukano 2nd,North Kona Island, County and State of Hawaii The undersigned are the fee owners of the real property above-identified, and hereby authorize Carlsmith Ball, LLP to communicate with, apply for, execute and process an amendment to Ordinance No. 08-059 (formerly Ordinance No. 96-8) with the County of Hawaii to keep the roadways in private ownership, and to participate in proceedings related to said real property. A photostatic or facsimile copy of this executed authorization shall also be considered as effective and valid as the original. ACKERMAN RANCH, INC., a Hawaii Corporatio By GrG 2��Q Na► e: Noel B. Ackerman I President Subscribed and sworn (or affirmed) before me this I I day of c P R IL , 2022. Name: Alayna DeBina NOTARY CERTIFICATION STATEMENT Document Identification or Description: FEE OWNER'S LETTER OF AUTHORIZATION Document Date: 1471216- It2U Z No. of Pages: , �`"'441if"""', ,,, 114A M" pF9'',oa Jurisdiction (in which notarial act is performed): Third Circuit .• •'• '•• i •, b4-/u 6 2n22 =_ 17559 = Signat - . otary Date of Notarization and 3 .1Certification Statement %s'�gA�/BL�G P�� s°` tk i-DOC t4 A NA. 17 t t c ;i`! I ,, 9F H44 p.->�?°I Printed Name of Notary Date of Notary Commission Expiration: 12/10/2025 4830-3175-0625.1.051730-00047 Exhibit B 1250 Oceanside Special Permit Application Surrounding Property Owners Within 1000' of TMK No.: (3) 8-1-004:070 TMK Owner Name and Address 8-1-004-092 State of Hawaii 7-9-011-040 Yamagata Development Co 8-1-004-095 Hokuli'a Community PO Box 9018 8-1-026-057 Association Inc Kealakekua,HI 96750 9018 PO Box 247 Kealakekua HI 96750 0247 7-6-012-003 State of Hawaii 8-1-004-096 Water Board of The County Hokukano Historic Village of Hawaii Executive Order 8-1-026-002 Konatoti LLC 7-9-012-004 Ackerman Ranch Inc PO Box 9014 7-6-012-006 PO Box 555 Kealakekua,HI 96750 9014 Kealakekua,HI 96750 0555 8-1-026-006 Malino Ke Kai Properties 7-9-012-009 Hawaii Properties LLC LLC PO Box 230346 200 W Sahara Ave Tigard OR 97281 0346 Las Vegas NV 89102 5002 7-9-012-013 Elizabeth F Heuer 8-1-026-008 TR Dielsi C/O Charlotte Sheppard 16292 Rascal Ln 236 Sunset Dr Huntington Beach CA 92649 Ronceverte WV 24970 1185 2512 8-1-026-019 NFM Investors LLC Patricia M Greenwell Tr C/O Ronald M Foster 82-919 Coffee Dr 4637 Falcon Crest Way Captain Cook HI 96704 8250 Turlock,CA 95382 7477 8-1-026-021 Hokulia Homes LLC Lori L Greenwell 5665 N Scottsdale Rd Ste 135 650 Floyd Scottsdale,AZ 85250 5912 Chula Vista Aveve 91910 6427 8-1-026-022 Marshall Family Trust C3420 Shangri LA Rd Katherine E Greenwell Lafayette, CA 94549 0000 8-1-026-024 Sereivuthy Dimang 8-1-004-003 Hokulia Park&Cultural Sites PO Box 2884 8-1-004-094 Assn Inc Carefree AZ 85377 2884 8-1-026-001 HPCSA Foundation 8-1-026-027 Richard R Goodmanson 8-1-004-078 PO Box 247 Janet A Goodmanson 8-1-004-084 Kealakekua,HI 96750 0247 Ke Box 747 8-1-032-023 Kealakekua,HI 96750 8-1-034-024 8-1-026-028 MJR FLLLP 8-1-034-027 6688 Gunpark Dr Ste 201A 8-1-035-008 Boulder CO 80301 8-1-026-029 Joshua J Ellithorpe 8-1-004-054 Kalukalu Properties General Delivery PO Box 1236 Mountain View HI 96771 Kealakekua,HI 96750 1236 9999 8-1-004-065 The Club At Hokuli'a Inc 8-1-004-087 PO Box 247 Joshua J Ellithorpe Kealakekua,HI 96750 2294 26441 Lombardy Rd 8-1-004-075 Kalukalu Properties Mission Viejo CA 92692 PO Box 1236 3268 Kealakekua,HI 96750 1236 8-1-026-030 John R Kennedy 8-1-004-083 Hokuli'a Community Services 1414 W Galvin St 8-1-036-005 Inc Phoenix AZ 85086 PO Box 247 Kealakekua,HI 96750 0247 4892-2217-0435.1.051730-00047 12/13/22 Exhibit B 1250 Oceanside Special Permit Application Surrounding Property Owners Within 1000' of TMK No.: (3) 8-1-004:070 8-1-026-031 Morally Investments& 78-6805 Kuhinanui P1 Consulting Inc Kailua Kona,HI 96740 2804 6965 El Camino Real Ste 105- 8-1-026-050 Jan R Hassfurther Trst 231 188 Bears Club Dr Carlsbad,CA 92009 4100 Jupiter,FL 33477 4203 8-1-026-032 Adams Hokulia LLC 8-1-026-051 Bob/Yvonne Helstrom 707 Esplanade Unit C Charitable RDM Trst Redondo Beach CA 90277 PO Box 3887 4634 Lacey,WA 98509 3887 8-1-026-033 Richard S Bauder 8-1-026-052 RS Kona Properties LLC Marcia.A Bauder 5665 N Scottsdale Rd Ste 135 321 High Point Dr Scottsdale,AZ 85250 5912 Breckenridge CO 80424 0000 8-1-026-053 Yong Soo Huh 2000 Henderson Ave 8-1-026-034 P Clay Thomas Janet Thomas Eugene,OR 97403 2224 8-1-026-054 Robert K Greenwell PO Box 169 PO Box 1779 Kealakekua,HI 96750 0169 Kailua Kona,HI 96740 8-1-026-036 JMP IV LLC 8-1-026-056 Canyon River Investments LP 2432 Tall Oaks Dr 9013 Greensboro Ln Troy,MI 48098 2496 Las Vegas NV 89134 0501 8-1-026-037 Scott Michael Nordberg 8-1-027-001 Richard S Belas Kendra Marie Nordbert Judity E Soltz 440 SE Bush St 960 Lafayette Rd Issaquah WA 98027 3913 Bryn Mawr,PA 19010 1916 8-1-026-038 Deborah Troxel Tr 8-1-027-002 County of Hawaii Water PO Box 415 Board Holualoa,HI 96725 0415 345 Kekuanaoa St Ste 20 8-1-026-042 Green Flash Investments LLC Hilo,HI 96720 141 S Western Coil Rd 8-1-027-003 Up Front Group Co LTD Lindon UT 84042 1602 C/0 Tetsuko S. Ho, CPA, Inc. 8-1-026-043 Ululani Mauka LLC 1833 Kalakaua Ave.,#910 75-853 Keaolani Dr Honolulu,HI 96815 1528 Kilua Kona,HI 96740 8815 8-1-027-006 Ikos At Hokulia,LLC 8-1-026-044 Gustafson Family Trst PO Box 13720 PO Box 4619 Scottsdale,AZ 85167 Palos Verdes Estates CA 8-1-027-009 Manuel L Ojeda 90274 9612 Debbie Ann Ojeda 8-1-026-045 Konapandc LLC PO Box 4619 1124 Parkwood Way Redwood City CA 94061 Palos Verdes Estates CA 3623 90274 9612 8-1-027-012 Jerry Bruce Anderson 8-1-026-046 David Fediuk Ileana Carolla Anderson Dale Fediuk 75-1000 Henry St Ste 200 PO Box 390983 Kailua-Kona HI 96740 1691 Keauhou HI 96739 0983 8-1-027-013 Hokulia 14 LLC 8-1-026-047 Christopher J Williams ATTN: Alan Livingston Kristine Claire Williams PO Box 1271 PO Box 2708 Captain Cook,HI 96704 Naples FL 34106 2708 1271 8-1-026-048 Rhymes Trst 8-1-027-014 Bowerbird International Inc Douglas/Susan TTEES 1031 Rosser Ave Rhymes Brandon Manitoba R7A OL5 4892-2217-0435.1.051730-00047 12/13/22 Exhibit B 1250 Oceanside Special Permit Application Surrounding Property Owners Within 1000' of TMK No.: (3) 8-1-004:070 Canada 8-1-027-036 TR Reina 8-1-027-017 Malie Investment Partners 1022 Waterford Dr LLC West Sacramento CA 95605 C/O Hokulia Inv Ptnrs C/O 2563 Pierce Ranch 8-1-027-037 Adak Holdings LTD PO Box 538 PO Box 1068 410-37989 Pierce,TX 77467 0538 Cleveland Ave 8-1-027-020 Shaw Family Trst Squamish BC V8B 0A7 PO Box 14888 Canada Scottsdale,AZ 85267 4888 8-1-027-038 Hawaii 2030 Investors LLC 8-1-027-021 Charles Vincent Doherty 205 SE Spokane St Ste 399 6 Carmenere Ct Portland OR 97202 Henderson,NV 89011 2691 8-1-027-039 Jack A Dempsey 8-1-027-022 Takuo Horikoshi 124 Greystone PT 3-23-22-1307 Higashi- Boerne,TX 78006 4204 Ikeburo 8-1-027-040 Michael Edward Clarke Toshima-KU Tokyo 170-0013 Sandra Marie Clarke Japan 53 Hidden Oaks Dr 8-1-027-023 KDM Chartana LLC Lafayette CA 94549 4146 ATTN Kevein Moore 8-1-027-041 Tatsuya Omura 730 15th St 6-34-7 Fukasawa Boulder,CO 80302 7622 Setagaya-Ku Tokyo 158-0081 8-1-027-024 S Craig Bernard Tr Japan PO Box 149 8-1-027-042 Platinum Investment Kona Inc Kealakekua HI 96750 0149 PO Box 2609 8-1-027-027 Hokulia 99 LLC Kailua Kona,HI 96745 PO Box 5295 8-1-027-043 Bruce Webster Kealakekua HI 96750 5295 3004 30 Ave Ste 106 8-1-027-028 PrestonKona LLC Vernon BC V7E 106 Canada C/O Preston Clay Thomas 8-1-027-044 Hokuli'a Community Services PO Box 169 8-1-036-005 Inc Kealakekua,HI 96750 0169 PO Box 247 8-1-027-029 Thomas Trst Kealakekua,HI 96750 0247 C/O P Clay/Janet F Thomas 8-1-028-013 Robert S Kildow PO Box 169 Barbara Tabbert Kildow Kealakekua,HI 96750 0169 C/O Hualalai Resort 8-1-027-030 Boxer I Trust PO Box 1596 C/O Jack A Dempsey TTEE Kailua Kona,HI 967415 124 Greystone Pt 1596 Boerne TX 78006 4204 8-1-028-015 Ronald W Hastie 8-1-027-031 ZEPP Properties156 LLC PO Box 1211 13631 Paseo Del Roble Dr Olympia WA 98507 1211 Los Altos,CA 94022 2410 8-1-032-001 Hamekameha Inc 8-1-027-034 Dividend Capital Group Inc ATTN: Horwich Law LLP Tr 1717 Pennsylvania Ave NW PO Box 611627 Ste 1025 San Jose CA 95161 1627 Washington DC 20006 3951 8-1-027-035 Cynthia Nye Griffey Tr 8-1-032-002 West Coast Hawaii Partners Jamaica Tiare Canas ATTN: Horwich Law LLP 75-6164 Nakukui Dr 1717 Pennsylvania Ave NW Kailua-Kona,HI 96740 3020 Ste 1025 4892-2217-0435.1.051730-00047 12/13/22 Exhibit B 1250 Oceanside Special Permit Application Surrounding Property Owners Within 1000' of TMK No.: (3) 8-1-004:070 Washington DC 20006 3951 8-1-032-007 8-1-032-059 The Club At Hokuli'a Inc 8-1-032-008 PO Box 247 8-1-032-011 Kealakekua,HI 96750 8-1-032-013 8-1-034-014 William A Franke 8-1-032-017 8-1-034-015 2525 E Camelback Rd Ste 8-1-032-019 900 8-1-032-020 Phoenix,AZ 85016 4281 8-1-032-021 8-1-034-026 State of Hawaii 8-1-032-022 8-1-035-001 Pacific Star Investment 8-1-032-024 8-1-036-001 Properties LLC 8-1-032-025 5665 N Scottsdale Rd Ste 135 8-1-032-026 Scottsdale,AZ 85250 5912 8-1-032-028 8-1-004-064 1250 Oceanside LLC 8-1-032-033 8-1-004-070 5665 N Scottsdale Rd Ste 135 8-1-032-033 8-1-004-079 Scottsdale,AZ 85250 5912 8-1-032-035 8-1-004-086 8-1-032-038 8-1-004-089 8-1-032-039 8-1-004-096 8-1-032-040 8-1-026-003 8-1-032-041 8-1-026-005 8-1-032-042 8-1-026-007 8-1-032-043 8-1-026-009 8-1-032-044 8-1-026-011 8-1-032-045 8-1-026-023 8-1-032-051 8-1-026-025 8-1-032-052 8-1-026-026 8-1-032-053 8-1-026-039 8-1-032-054 8-1-026-055 8-1-032-055 8-1-027-004 8-1-033-002 8-1-027-005 8-1-033-003 8-1-027-007 8-1-033-004 8-1-027-008 8-1-033-005 8-1-027-010 8-1-033-006 8-1-027-011 8-1-033-007 8-1-027-018 8-1-033-008 8-1-027-019 8-1-034-001 8-1-027-025 8-1-034-002 8-1-027-026 8-1-034-003 8-1-027-032 8-1-034-004 8-1-027-033 8-1-034-005 8-1-028-001 8-1-034-006 8-1-028-002 8-1-034-007 8-1-028-006 8-1-034-008 8-1-028-012 8-1-034-009 8-1-028-017 8-1-034-010 8-1-028-018 8-1-034-011 8-1-028-039 8-1-034-012 8-1-028-055 8-1-034-013 8-1-032-003 8-1-034-016 8-1-032-004 8-1-034-017 8-1-032-005 8-1-034-018 4892-2217-0435.1.051730-00047 12/13/22 Exhibit B 1250 Oceanside Special Permit Application Surrounding Property Owners Within 1000' of TMK No.: (3) 8-1-004:070 8-1-034-019 8-1-034-020 8-1-034-021 8-1-034-022 8-1-034-023 8-1-026-035 1250 Oceanside LLC 8-1-026-040 C/O Sunchase Holdings Inc 8-1-026-041 5665 N Scottsdale Rd Ste 135 8-1-027-015 Scottsdale,AZ 85250 5912 8-1-027-016 8-1-028-014 8-1-028-016 1250 Oceanside LLC ATTN: Sunshine Holdings 5665 N Scottsdale Rd#135 Scottsdale,AZ 85250 5912 4892-2217-0435.1.051730-00047 12/13/22 Exhibit B Electronically Filed THIRD CIRCUIT 3CCV-23-0000123 23-JUN-2023 08:24 AM Dkt. 74 EXH Exhibit C COUNTY OF HAWAII STATE OF HAWAII BILL NO. 158 (Draft 5) ORDINANCE NO. 9 7 AN ORDINANCE AMENDING SECTION 25-87 (NORTH KONA ZONE MAP) , AND SECTION 25-88 (SOUTH KONA ZONE MAP) , ARTICLE 3 , CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE, BY CHANGING THE DISTRICT CLASSIFICATION FROM UNPLANNED (U) TO AGRICULTURAL (A-la) AT HONUAINO 3RD AND 4TH, HOKUKANO 1ST AND 2ND, HALEKII , KEEKEE 1ST AND 2ND, ILIKAHI, KANAKAU 1ST AND 2ND, KALUKALU 1ST, 2ND AND 3RD AND ONOULI 1ST, NORTH AND SOUTH KONA, HAWAII, COVERED BY TAX MAP KEY 7-9-12 : 4 , 11 AND PORTION OF 3 AND 8-1-4 : PORTION OF 3 . BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII : SECTION 1 . Section 25-87, Article 3 , Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of property described hereinafter as follows : The district classification of the following area situated at Honuaino 3rd and 4th, Hokukano 1st and 2nd and Kanueue 1st and 2nd, North Kona, Hawaii shall be Agricultural (A-1a) : PARCEL 1 : Beginning at the Northeasterly corner of this parcel of land, being also an angle point on the Southerly boundary of Royal Patent 1098 , Land Commission Award 614 to Charles Hall, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" , being 5 , 408 . 20 feet North and 934 . 23 feet East and running by azimuths measured clockwise from True South: 1 . 345° 15 ' 189 . 91 feet along Grant 2029 to S . W. Makahiki to a point : Thence, following along the remainder of Grant 2029 to S . W. Makahiki on a curve to the right with a radius of 470 . 00 feet , the chord azimuth and distance being: Exhibit C 2 . 316° 23 ' 15" 424 . 98 feet to a point; 3 . 343° 16 ' 839 . 35 feet along the remainders of Grant 2029 to S . W. Makahiki, Grant 1453 to John Cavanah and Grant 1463 to Keawe to a point ; Thence, following along the remainder of Grant 1463 to Keawe on a curve to the left with a radius of 1030 . 00 feet, the chord azimuth and distance being: 4 . 329° 59 ' 30 " 473 . 03 feet to a point ; 5 . 316° 43 ' 68 . 92 feet along the remainder of Grant 1463 to Keawe to a point; Thence, following along the remainder of Grant 1463 to Keawe and Grant 1587 to John Peters on a curve to the right with a radius of 1270 . 00 feet, the chord azimuth and distance being: 6 . 345° 33 ' 1224 . 95 feet to a point; 7 . 14° 23 ' 350 . 20 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainder of Grant 1587 to John Peters on a curve to the left with a radius of 1030 . 00 feet, the chord azimuth and distance being: 8 . 354° 32 ' 30" 699 . 21 feet to a point ; 9 . 334° 42 ' 918 . 92 feet along the remainder of Grant 1587 to John Peters to a point ; Thence, for the next three (3) courses following along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4 , Section 2 to the American Board of Commissioners for Foreign Missions : -2- Exhibit C 10 . 66° 00 ' 770 . 00 feet to a point ; 11 . 74° 30 ' 930 . 00 feet to a point; 12 . 67° 00 ' 285 . 65 feet to a point ; Thence, for the next twenty-one (21) courses following along the remainder of Grant 1651 to Charles Hall : 13 . 179° 00 ' 416 . 28 feet to a point ; 14 . 149° 00 ' 221 . 00 feet to a point ; 15 . 52° 00 ' 205 . 00 feet to a point ; 16 . 67° 00 ' 304 . 00 feet to a point ; 17 . 80° 00 ' 573 . 00 feet to a point ; 18 . 102° 00 ' 259 . 00 feet to a point ; 19 . 136° 00 ' 441 . 00 feet to a point ; 20 . 120° 00 ' 641 . 00 feet to a point ; 21 . 137° 00 ' 256 . 00 feet to a point ; 22 . 168° 20 ' 1123 . 00 feet to a point ; 23 . 163° 30 ' 456 . 00 feet to a point ; 24 . 206° 00 ' 214 . 09 feet to a point ; 25 . 243 ° 00 ' 693 . 46 feet to a point ; 26 . 193° 00 ' 282 . 00 feet to a point; 27 . 222° 00 ' 513 . 00 feet to a point ; 28 . 210° 19 ' 324 . 00 feet to a point ; 29 . 198° 00 ' 497 . 68 feet to a point ; 30 . 181° 00 ' 307 . 60 feet to a point ; 31 . 258° 00 ' 140 . 74 feet to a point ; 32 . 188° 49 ' 30 " 106 . 80 feet to a point ; 33 . 170° 53 ' 443 . 95 feet to a point ; -3- Exhibit C 34 . 268° 39 ' 20 . 00 feet along Honalo-Kainaliu Beach Road; Thence, for the next four (4) courses following along middle of stonewall and along Land Commission Award 3659 to J. Martin: 35 . 272° 51 ' 57 . 35 feet to a point; 36 . 267° 36 ' 189 . 05 feet to a point ; 37 . 269° 43 ' 203 . 15 feet to a point; 38 . 275° 15 ' 223 . 35 feet to a point; Thence, for the next three (3) courses following along middle of stonewall and along Royal Patent 1098, Land Commission Award 614 to Charles Hall : 39 . 268° 14 ' 434 . 20 feet to a point ; 40 . 275° 04 ' 236 . 30 feet to a point ; 41 . 262° 13 ' 206 .40 feet to the point of beginning and containing an area of 383 . 952 Acres, more or less . (Refer to Parcel 1 as shown on Exhibit "A" ) . SECTION 2 . Section 25-88 , Article 3 , Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of property described hereinafter as follows : The district classification of the following area situated at Halekii, Keekee 1st and 2nd, Ilikahi, Kanakau 1st and 2nd, Kalukalu 1st, 2nd and 3rd and Onouli 1st, South Kona, Hawaii, shall be Agricultural (A-la) : -4- Exhibit C PARCEL 2 : Beginning at the Northeasterly corner of this parcel of land, being also an angle point on the Southerly boundary of Grant 1587 to John Peters, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" , being 601 . 01 feet North and 2 , 479 . 11 feet East and running by azimuths measured clockwise from True South: 1 . 334° 42 ' 342 . 98 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4 , Section 2 to the American Board of Commissioners for Foreign Missions to a point : Thence, following along the remainders of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4 , Section 2 to the American Board of Commissioners for Foreign Missions and Grant 1176 to Kini on a curve to the left with a radius of 705 . 00 feet, the chord azimuth and distance being: 2 . 298° 34 ' 831 .43 feet to a point ; 3 . 262° 26 ' 397 . 26 feet along the remainder of Grant 1176 to Kini to a point ; Thence, following along the remainder of Grant 1176 to Kini on a curve to the right with a radius of 645 . 00 feet, the chord azimuth and distance being: 4 . 277° 14 ' 329 . 53 feet to a point ; 5 . 292° 02 ' 85 . 32 feet along the remainder of Grant 1176 to Kini to a point ; Thence, following along the remainder of Grant 1176 to Kini on a curve to the right with a radius of -5- Exhibit C 30 . 00 feet, the chord azimuth and distance being: 6 . 337° 02 ' 42 . 43 feet to a point; 7 . 22° 02 ' 35 . 26 feet along the remainder of Grant 1176 to Kini to a point; Thence, following along the remainders of Grant 1176 to Kini and Grant 1177 to Kamakahiona on a curve to the left with a radius of 705 . 00 feet, the chord azimuth and distance being: 8 . 6° 12 ' 384 . 70 feet to a point; 9 . 350° 22 ' 60 . 05 feet along the remainder of Grant 1177 to Kamakahiona to a point; Thence, following along the remainders of Grant 1177 to Kamakahiona and Grant 1175 to Nakauwaa on a curve to the right with a radius of 645 . 00 feet, the chord azimuth and distance being: 10 . 6° 42 ' 30" 362 . 96 feet to a point ; 11 . 23° 03 ' 162 . 63 feet along the remainder of Grant 1175 to Nakauwaa to a point; Thence, following along the remainders of Grant 1175 to Nakauwaa and Grant 1464 to Ialua along a curve to the left with a radius or 705 . 00 feet, the chord azimuth and distance being: 12 . 6° 06 ' 411 . 07 feet to a point ; 13 . 349° 09 ' 54 . 98 feet along the remainder of Grant 1464 to Ialua to a point; Thence, following along the remainder of Grant 1464 to Ialua on a curve to the right with a radius of 645 . 00 feet, the chord azimuth and distance being: -6- Exhibit C 14 . 3° 07 ' 311 . 35 feet to a point ; 15 . 17° 05 ' 307 . 17 feet along the remainders of Grant 1464 to Ialua and Grant 1576 to Lohi to a point ; Thence, following along the remainders of Grant 1576 to Lohi, Grant 1160 to H. N. Greenwell and Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole on a curve to the left with a radius of 1130 . 00 feet, the chord azimuth and distance being: 16 . 349° 47 ' 1036 . 55 feet to a point; 17 . 322° 29 ' 272 . 49 feet along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole to a point ; Thence, following along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole on a curve to the right with a radius of 870 . 00 feet , the chord azimuth and distance being: 18 . 352° 50 ' 30" 879 .41 feet to a point ; 19 . 23 ° 12 ' 488 . 09 feet along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole to a point; Thence, following along middle of stonewall and along Grant 1162 to F . 0. Shulze, the direct azimuth and distance being: 20 . 78° 08 ' 30" 958 . 38 feet to a point ; Thence, following along middle of stonewall and along Grant 1162 to F. 0. Shulze, the direct azimuth and distance being: 21 . 57° 14 ' 50" 1532 . 00 feet to a point ; -7- Exhibit C Thence, for the next four (4) courses following along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole : 22 . 160° 00 200 . 00 feet to a point; 23 . 149° 00 ' 452 . 00 feet to a point; 24 . 160° 51 ' 628 . 00 feet to a point; 25 . 152° 30 ' 327 . 00 feet to a point ; 26 . 182° 19 ' 313 . 00 feet - along the remainders of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole and Grant 1745 to John Cavanah to a point; Thence, for the next five (5) courses following along the remainder of Grant 1745 to John Cavanah: 27 . 171° 27 ' 400 . 00 feet to a point; 28 . 161° 20 ' 606 . 00 feet to a point ; 29 . 175° 16 ' 440 . 00 feet to a point; 30 . 182° 42 ' 30" 1190 . 00 feet to a point; 31 . 155° 00 ' 489 . 00 feet to a point ; 32 . 181° 00 ' 353 . 00 feet along the remainders of Grant 1745 to John Cavanah and Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4 , Section 2 to the American Board of Commissioners for Foreign Missions to a point; 33 . 153° 00 ' 492 . 00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4 , Section 2 to the American Board of Commissioners for Foreign Missions to a point ; 34 . 179° 00 ' 126 . 72 feet along the remainder of Royal Patent 1670 to John D. -8- Exhibit C Parish on a portion of Land Commission Award 387, Part 4 , Section 2 to the American Board of Commissioners for Foreign Missions to a point; 35 . 247° 00 ' 285 . 65 feet along Grant 1651 to Charles Hall to a point ; 36 . 254° 30 ' 930 . 00 feet along Grant 1651 to Charles Hall to a point; 37 . 246° 00 ' 770 . 00 feet along Grant 1587 to John Peters to the point of beginning and containing an area of 372 . 010 Acres, more or less . All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part hereof herein after referred to as "subject property" ) . SECTION 3 . These changes in district classification are conditioned upon the following: A. The applicant, successors or assigns shall be responsible for complying with all of the stated conditions of approval . B . The applicant, successors or assigns shall be responsible for complying with all requirements of Chapter 205 , Hawaii Revised Statutes, relating to permissible uses within the State Land Use Agricultural District . C. The effectuation of the water commitment rights in the Kealakekua Source Agreement to the current landowners of the subject property with the acceptance of the prevailing facilities charge for the 499 units of water by the Department of Water -9- Exhibit C Supply of the required water commitment payment shall be in accordance with its "Water Commitment Policy" . Prior to approval of the 500th lot within the development area, the applicant shall secure the necessary "Water Commitments" and comply with the Department of Water Supply' s "Water Commitment Policy" for the remaining units of water for the proposed subdivision and golf course development . D. Subdivision plans for any portion of the subject property for this change of zone shall be submitted to the Planning Department and Final Subdivision Approval secured within five (5) years from the effective date of this ordinance . E . A wastewater disposal system shall be constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works, whichever is applicable . F . All electrical and communication utilities and systems within the subject property shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site . G. A Flood Study of the subject property shall be submitted to the Planning Department in conjunction with plans submitted for subdivision review for any portion of the subject property. Drainage improvements shall be constructed in a manner meeting with the approval of the Department of Public Works, prior to the issuance of Final Subdivision Approval for the subject property. -10- Exhibit C H. An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division and Hawaiian community organizations, prior to submitting plans for subdivision review. The Plan shall consist of three subplans : 1 . an archaeological data recovery plan for the sites to undergo data recovery, 2 . a detailed interim protection/preservation plan for the sites to undergo preservation, and 3 . an interpretation plan which shall include buffer zones, signage and long-range preservation concerns which may be submitted at a later date . Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the subject property. I . Should any unidentified sites or remains such as artifacts, shell, bone, or charcoal deposits, human burials, rock or coral alignments, pavings or walls be encountered, work in the immediate area shall cease and the Planning Director shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken. J. A solid waste management plan shall be prepared meeting with the approval of the Department of -11- Exhibit C Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the proposed development . Approved recommendations and mitigation measures shall be implemented at a time and in a manner meeting with the approval of the Department of Public Works . K. A final comprehensive public access plan, to be developed in consultation with community groups, shall be submitted to and approved by the Planning Director prior to final subdivision approval, or any land alteration activity, whichever comes first . The final comprehensive public access plan shall be developed in consultation with the Planning Director and the Department of Land and Natural Resources and shall include mauka-makai and lateral shoreline accesses, parking area (s) , signage, emergency response considerations, restrictions on use (if any) , provision of recreational and restroom facilities at appropriate locations, and related improvements; provided, that the construction of the coastline park and access ways shall be subject to the obtaining of all necessary discretionary permits (e .g. , Conservation District Use Approval, Special Management Area Use Permit, etc . ) ; provided, further, that the applicant shall be responsible to comply with the following terms and conditions : 1 . An area comprising twenty-five percent (25%) of the total park area, as shown on Exhibit "E" attached hereto and made a part hereof, shall be developed and improved by the applicant or its agent in phases within five (5) years from -12- Exhibit C the date Final Subdivision Approval is obtained on the subject property. The first phase shall be completed and open to the public within thirty (30) days following the opening of the golf course; 2 . Upon opening the first phase of the park area, a minimum of twenty-five (25) public parking stalls in addition to parking stalls for residents , guests, and employees within the subject property and the applicant ' s adjacent lands at the principal shoreline access parking area (s) , signage and provisions for public access for night fishing and marine food gathering purposes over designated vehicular and pedestrian access routes subject to restrictions which limit said uses to recreation uses only, and other restrictions which provide for the health and safety of the general public and residents alike . The number of parking stalls shall be increased commensurately with the approval of additional park phases in accordance with the public access plan; and 3 . The public shoreline access plan shall also integrate where appropriate, any public accessway (s) to interpretive trail system (s) and to the historical and archaeological sites to be approved by the Planning Director, in consultation with the Department of Land and Natural Resources in conjunction with the detail mitigation plan for the park area situated in the Conservation district . -13- Exhibit C L. Prior to final approval of a small lot subdivision plat within the subject property, the applicant shall convey to the County of Hawaii by way of a perpetual easement the right to public access and recreational use of its privately owned coastline park and trails; provided, that restrictions will be allowed to be established by the applicant, subject to the approval of the Planning Director, to promote public health and safety and the general security of the premises for residents and guest of the project to protect the area ' s pristine condition, and to minimize any liability to the applicant, pursuant to Chapter 520, Section 520-4, Hawaii Revised Statutes . The applicant shall retain ownership of its coastline park and trails in fee simple and maintain all lands in the coastline park area and operate such facility for public recreational use in accordance with the above terms and conditions . This condition shall not be applicable to any roadway, trail or other rights-of-way, which are deemed public highways or trails as defined in Chapter 264 , Hawaii Revised Statutes; M. Roadway improvements and access (es) to the subject property, including all plans and construction, shall meet with the approval of the Department of Public Works . Prior to the issuance of Final Subdivision Approval for any portion of the subject property, the applicant shall : 1 . construct the channelization and signalization of the Mamalahoa Highway-Haleki' i Street intersection; -14- Exhibit C 2 . determine the final right-of-way alignment of the entire Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook, including its intersection areas and its acquired ownership or control . The applicant shall provide the Planning Director with a metes and bounds description of each road right-of-way segment involved and evidence of its ownership or control as deemed necessary by the Planning Director. In lieu of the applicant obtaining or acquiring ownership or control of any segment of the Mamalahoa Highway Bypass, the requirement shall be deemed fulfilled upon the county' s formal initiation of condemnation action (s) for such segments and an agreement has been entered into between the applicant and the county providing for the applicant' s reimbursement to the county for the acquisition of the lands condemned; 3 . construct the Mamalahoa Highway Bypass in its entirety between the approximate vicinity of Keauhou and Captain Cook, consisting of two lanes with sufficient right-of-way for a total of four lanes, provided further, that the section of the Mamalahoa Highway Bypass between Keauhou and Haleki ' i Street shall be completed and available for public use prior to the occupancy of any dwelling unit within the entire project area; 4 . construct the extension of Haleki' i Street through the subject property as generally reflected in Exhibit "B", which phasing of improvements shall be approved by the -15- Exhibit C Department of Public Works . If, before the completion and opening of the entire Mamalahoa Highway Bypass, a portion of said bypass is completed and opened, and said portion provides a connection to Haleki' i Street, a barricade or breakaway gate meeting with the requirements of the Department of Public Works, shall be installed by the applicant as part of the required Haleki' i Street improvements . The purpose of this condition is to prevent the use of Haleki' i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and a portion of the Mamalahoa Highway Bypass until the entire proposed Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook has been completed and opened for general public use; and 5 . provide roadway stub-outs, generally shown in Exhibit "Be, to provide future connections between the subject property and the adjacent properties to the north and south; provided that such stubouts shall be constructed in accordance with the construction phasing as approved by the Department of Public Works . The applicant shall construct the Mamalahoa Highway Bypass to standards set forth by the Department of Public Works for Alii Highway with such modifications as may be deemed necessary by the Department of Public Works . The applicant shall provide a landscape buffer along highway sections within five hundred feet of existing dwellings, as required by the chief engineer, to reduce the impacts of noise and light on the residents therein -16- Exhibit C and to generally beautify the highway appearance in such locations; provided that the applicant shall enter into a reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction, land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom the county may determine as benefiting from the Mamalahoa Highway Bypass and which funds are available to the county for such purpose ; and provided further, that the total amount of reimbursement due to the applicant shall not exceed the total cost of land acquisition, design and construction of the Mamalahoa Highway Bypass incurred by the applicant , less the pro rata portion attributed to the subject property; N. In lieu of actual construction of infrastructural improvements as required under Conditions E, G, J, K, and M, the applicant may enter into an agreement with the Planning Director and the Department of Public Works and the Department of Water Supply, if applicable, to assure the county that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable to the Planning Director and approved by the Corporation Counsel . Upon execution of such agreement and filing of the security with the county, if applicable, Final Subdivision Approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements . -17- Exhibit C 0. The applicant shall make its fair share contribution to mitigate the potential regional impacts of the subject property with respect to parks and recreation , fire, police, solid waste disposal facilities, and roads . The amount of the fair share contribution shall be the sum which is the product of multiplying the number of lots proposed to be subdivided by the amounts allocated hereinbelow for each such lot, and shall become due and payable prior to final subdivision approval for any portion of the subject property or its increments . If the subject property is subdivided in two or more increments, the amount of the fair share contribution due and payable prior to final subdivision approval of each increment shall be a sum calculated in the same manner according to the number of additional proposed lots in each such increment . The fair share contribution for each lot, except for lots larger than ten acres in size or which are committed exclusively for golf course and park purposes, shall be based on the maximum allowable density of building sites as determined by the zoning of such lot . The fair share contribution in a form of cash, land, facilities, or any combination thereof acceptable to the director in consultation with the affected agencies shall have a maximum combined value of $7, 239 .16 per lot. Based upon the applicant' s representation of intent to subdivide and develop up to 400 lots, the indicated total fair share contribution is $2, 895, 664 .00, however, the total amount shall be increased or reduced in proportion with the actual number of subdivided lots according to the calculation and payment provisions set forth in this Condition 0. -18- Exhibit C The fair share contribution shall be allocated as follows : 1 . $3 , 490 . 85 per lot, for an indicated total of $1, 396, 340 . 00 to the County to support park and recreational improvements and facilities; 2 . $168 . 40 per lot, for an indicated total of $67, 360 . 00 to the County to support police facilities; 3 . $332 . 61 per lot, for an indicated total of $133, 044 . 00 to the County to support fire facilities; 4 . $145 . 62 per lot , for an indicated total of $58, 248 . 00 to the County to support solid waste facilities ; 5 . $3 , 101 . 68 per lot, for an indicated total of $1, 240, 672 . 00 to the State or County to support road and traffic improvements . The fair share contributions described above shall be adjusted annually beginning three years after the effective date of this ordinance, based on the percentage change in the Honolulu Consumer Price Index (HCPI) . In lieu of paying the fair share contribution, the applicant may construct and contribute improvements/facilities related to parks and recreation, fire, police, solid waste disposal facilities, and roads within the region impacted by the proposed development , subject to the approval of the director. The cost of constructing the improvements required in Conditions J, K and M shall -19- Exhibit C be credited against the sum specified in Condition 0 (4) for solid waste facilities, Condition 0 (1) for parks and recreation, and in Condition 0 (5) for road and traffic improvements . For purposes of administering Condition 0, the value of land contributed or the cost of any improvements required or made in lieu of the fair share contribution shall be such amount as approved by the Planning Director, upon consultation with the appropriate agencies . P. Comply with all applicable laws, rules, regulations and requirements, including those of the Department of Health, Fire, State Department of Education and the Department of Water Supply. Q . Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance . R. An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone . The report shall address in detail the status of the development and the compliance with the conditions of approval . This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required. -20- Exhibit C S . An extension of time for the performance of conditions within the ordinance, with the exception of Condition C, may be granted by the Planning Director upon the following circumstances : 1 . the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, and that are not the result of their fault or negligence; 2 . granting of the time extension would not be contrary to the General Plan or Zoning Code; 3 . granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; 4 . the time extension granted shall be for a period not to exceed the period originally granted for performance (i .e . , a condition to be performed within one year may be extended for up to one additional year) ; and 5 . should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant ' s request to the County Council for appropriate action. Should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate rezoning of the area to its original or more appropriate designation. -21- Exhibit C SECTION 4 . In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance . SECTION 5 . This ordinance shall take effect upon its approval . INTRODUCED BY: COUNCIL MEMBER, AUNTY OF HAW=' I Hilo, Hawaii Date of Introduction: December 15 , 1995 Date of 1st Reading: December 15, 1995 Date of 2nd Reading: January 3 , 1996 Effective Date : January 15 , 1996 A ' C/ED as to j j,';'. .7,-,nd £ -Ain't DEPu CC` -,,,`CN Cc,UNSEL. CCJNTY OF HAWAII Date __15f1`�' -22- Exhibit C . . , tri , ... ...,, ii i i Cr:7: 1 ..'''......'••• ; V A , ....J .. ••• '• ....:. ; l .; •'. 1.1, ..i7••.:;-:..! . o •; ) l'..11. ' . ) ' . --:-.-"-•;..-.......,..71:- • . ...., -.77.^-"....r.,,,--,. ..• ,'... *•••4 'I I V-..- '. 4, ''.-'-i•••••? . 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' ' ' , • — ,r•-i-----L ----• 1" - •• '-•.ty 1, •••• ' • ---- ' 441 -4 ),.,..'< - --f- •"• •..', ' ''''‘'t • •, i' '4,7.:. °.C i I I's.'"•• . 1•14 4' ' ' -• :A . ..... . - f,.--IV 1 f. l• , • • . •- , ' .. • • • : 1 r - - ', •;- j---.---,....rt-4,' . ,.,._ . . . .. C,r) rri Ca • ..!-;- . • • . .:-.• , , . _ • • c• ' 4' . •crt- . ....1 x 0 ‘.,... cri • - tra i . . , , ' . • =... ... i - ,._ ,. • ' , l'' - 0 • r-- •- c ..... , . - 1 _,,•• -1 2° xhibit C _ - .,.. .,. ,L l`rlrT d;.17,4}1 , '1 `� C \\4��`, /'11"c' ' '� ,� yi 11)/J ��IQ ', t :).,-......,%--'2,•;,./ Ji i \1\\1\11 11I(� ` n,. • :NA' 1J) ,1. ,l! \ • \*111 1 rj'' . ..-- . C\ / ). >.,, I` � � �?e� , •ijfQ`\�\�, P�.}4 `.�)1( ! N i. 1 C,... _ _V �.ZI_1r` �(��J ', 1 l -W6 • I ,( fD ` _ .t �' •/ iT ` _y�r+ .:401 or `••1,..•,.. iI \. . !o ` _•-i aQ� M J • i • _ .: ' / .2 s!r. 'diele /r . ` V � a�.• •� �. r i... 1.;, \ • '}--� n°2'.. • 7i7:::::::::. i7 :: !. • Yn \\� I �•- a 1.1.1..• \ � - �I / ';/ NI CT1 ::_ .../. t , , i ! I '� i 2 _ i� +++ .� v. -t• .. I • le CD0 .-‘...._____. .... ., i . IS—, t i V„. f• / rh 1 ./i , . 3.y^j - .1r..;• •�.. �./„•r•. 1 1 � 1 r I` 'i ' .w .I ani ��� t,, ,l,' ��y .'_li ,ID., . 1. . . ./ • •,_ • 71 � • !Jiff / '�/ 1 lin !' T ØS - t •A * , 1r..j� E I'; ���d .' , ,ate fe i••(�„ _/. ' ��,--, �'.. i 4 I\' 1 I.�\�\ 1(,. • /I r J l7 i" -/'• •i 1 c'., f , t {� '_ a. UI •,� 11 •• • 1 , e 'i.,',�lllll eel.!! J/, i ;rcri/C ; %i�' tc„ • t/ ), ^I r :.J -, 1 �/ P: r I •••�� /{` r. •L '1 sem' %T`��i•fi�, ,.tll(;1. ff. %��//: , r J'II I(.). k\, , '-„,./.- .`1��. M I • ' Re r' ,, ,is •,1 14 ! l ,S:, '\\ ),,/ �L� ��%!�� ,,•! '�I ',:( ',�` , IR 1(' r Ili ). ,))) 'r•': '•r. / i \'�,1�`, 11, J/ r to 'iLJJJIII''' �,[I ! `_- L,�.e..—s_ ' 1:\-.•” .\> •{ t� I •' _,,/ ;'( :- Exhibit C' • OFFICE OF THE COUNTY CLERK County of Hawaii REC r f Hilo , Hawaii (DRAFT 4) '96 JON 16 Hill 7 57 1pF. FALL VOTI .. C LER k ACM N T NNE -i WAIRS EX Introduced By: Takashi Domingo Arakaki X Date Introduced: December 15, 1995 First Reading: December 15, 1995 Bonk-Abramson X Published: N/A Childs X De Lima X REMARKS: Domingo X Osorio X Rath X Ray X Smith X 7 2 0 0 ( DRAFT 5) ROLL CALL VOTE Second Reading: January 3 , 1996 AYES NOES ABS EX To Mayor: January 4 , 1996 Returned: January 16, 1996 Arakaki X Effective: January 15 , 199 6 Bonk-Abramson X Published January 24 , 199 6 Childs X De Lima X REMARKS: Domingo X Osorio X Rath X Ray X Smith x 7 2 0 0 I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as indicated above. COUNCIL CHAIRMAN COUNTY CLERK Appr ved/ d this �� day of ,19 416414pljr •R,COUNTY 'F b•WAIL Bill No.: 158 (Draft 5 ) Reference: C-734/PC-88 Ord.No.: 4 1 Exhibit C COUNTY OF HAWAII STATE OF HAWAII 181 BILL NO. (Draft 6) ORDINANCE NO. 96 8 AN ORDINANCE AMENDING SECTION 25-87 (NORTH KONA ZONE MAP) AND SECTION 25-88 (SOUTH KONA ZONE MAP), ARTICLE 3, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE, AND ORDINANCE NO. 94-73, WHICH CLASSIFIED CERTAIN LANDS FROM AGRICULTURAL (A-5a) AND UNPLANNED (U) TO AGRICULTURAL (A-la) AT HONUAINO 3RD AND 4TH, HOKUKANO 1ST AND 2ND, KANAUEUE 1ST AND 2ND, HALEKII, KEEKEE 1ST AND 2ND, ILIKAHI, KANAKAU 1ST AND 2ND, KALUKALU 1ST, 2ND AND 3RD AND ONOULI 1ST,NORTH AND SOUTH KONA, HAWAII, COVERED BY TAX MAP KEY 7-9-06:PORTION OF 1, 7-9-12:PORTIONS OF 3, 4, AND 5 AND 8-1-04:PORTION OF 3. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Ordinance No. 94-73 is amended as follows: "SECTION 1. Section 25-87, Article 3, Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of properties described hereinafter as follows: The district classification of the following area situated at Kanaueue 1st and 2nd, North Kona, Hawaii, shall be Agricultural (A-la): PARCEL 1: Beginning at the Southeasterly corner of this parcel of land, being also a point on the Northerly boundary of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions, being also a point on the division between North and South Kona, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 1,704.58 feet North and 6,126.02 feet East and running by azimuths measured clockwise from True South: 1. 710 45' 902.30 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 2. 152° 14' 1,055.02 feet along the remainder of Grant 865 to John Nakookoo to a point; Exhibit C Thence, for the next seven (7) courses following along middle of stonewall and along Grant 992 to W. Whitmarsh: 3. 251° 23' 30" 224.69 feet to a point; 4. 250° 35' 58.35 feet to a point; 5. 255° 17' 131.07 feet to a point; 6. 240° 43' 26.91 feet to a point; 7. 257° 50' 172.57 feet to a point; 8. 243° 13' 30" 21.91 feet to a point; 9. 256° 57' 98.95 feet to a point; Thence, for the next twelve (12) courses following along middle of stonewall and along the remainder of Grant 865 to John Nakookoo: 10. 338° 17' 30" 158.36 feet to a point; 11. 257° 24' 102.95 feet to a point; 12. 255° 40' 30" 171.35 feet to a point; 13. 261° 29' 101.46 feet to a point; 14. 346° 30' 30" 54.40 feet to a point; 15. 343° 21' 30" 152.40 feet to a point; 16. 346° 20' 165.46 feet to a point; 17. 343° 29' 30" 80.88 feet to a point; 18. 357° 13' 57.51 feet to a point; 19. 345° 53' 30" 154.41 feet to a point; 20. 333° 53' 114.71 feet to a point; 21. 345° 43' 43.78 feet to the point of beginning and containing an area of 22.251 Acres, more or less. (Refer to Parcel 1 as shown on Exhibit "A"). -2- Exhibit C The district classification of the following area situated at Honuaino 3rd and 4th, Hokukano 1st and 2nd and Kanaueue 1st and 2nd, North Kona, Hawaii, shall be Agricultural (A-1 a): PARCEL 2: Beginning at the Northwesterly corner of this parcel of land, being also a point on the Southerly boundary of Royal Patent 1098, Land Commission Award 614 to Charles Hall, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 5,408.20 feet North and 934.23 feet East and running by azimuths measured clockwise from True South: Thence, for the next sixty-seven (67) courses following along middle of stonewall and along Royal Patent 1098, Land Commission Award 614 to Charles Hall: 1. 172° 44' 35.46 feet to a point; 2. 250° 06' 26.01 feet to a point; 3. 245° 26' 19.20 feet to a point; 4. 251° 15' 39.58 feet to a point; 5. 259° 25' 18.68 feet to a point; 6. 246° 50' 16.35 feet to a point; 7. 254° 27' 40.28 feet to a point; 8. 323° 16' 7.32 feet to a point; 9. 249° 32' 44.32 feet to a point; 10. 265° 01' 30" 16.93 feet to a point; 11. 271° 10' 30" 50.61 feet to a point; 12. 261° 46' 30" 67.77 feet to a point; 13. 256° 32' 30" 36.61 feet to a point; 14. 262° 38' 30.23 feet to a point; 15. 258° 17' 37.28 feet to a point; 16. 254° 45' 21.32 feet to a point; Exhibit C 17. 257° 35' 30" 36.22 feet to a point; 18. 265° 03' 21.89 feet to a point; 19. 263° 53' 30" 45.49 feet to a point; 20. 266° 14' 44.43 feet to a point; 21. 249° 07' 32.29 feet to a point; 22. 256° 49' 30" 41.74 feet to a point; 23. 250° 03' 30" 91.17 feet to a point; 24. 257° 28' 88.18 feet to a point; 25. 253° 37' 30" 14.36 feet to a point; 26. 271° 49' 7.86 feet to a point; 27. 243° 18' 30" 43.30 feet to a point; 28. 252° 36' 45.75 feet to a point; 29. 262° 29' 35.65 feet to a point; 30. 265° 31' 13.70 feet to a point; 31. 260° 35' 30" 76.29 feet to a point; 32. 268° 05' 30" 59.53 feet to a point; 33. 253° 44' 30" 12.40 feet to a point; 34. 259° 40' 25.69 feet to a point; 35. 264° 02' 51.71 feet to a point; 36. 259° 49' 30" 85.74 feet to a point; 37. 266° 56' 48.70 feet to a point; 38. 265° 44' 61.02 feet to a point; 39. 272° 05' 60.95 feet to a point; 40. 269° 19' 30" 91.04 feet to a point; 41. 275° 29' 26.42 feet to a point; 42. 280° 52' 30" 26.76 feet to a point; -4- Exhibit C 43. 272° 21' 30" 28.45 feet to a point; 44. 277° 12' 46.47 feet to a point; 45. 273° 22' 30" 84.54 feet to a point; 46. 273° 04' 30" 57.99 feet to a point; 47. 270° 29' 30.67 feet to a point; 48. 275° 46' 30" 91.01 feet to a point; 49. 267° 54' 30" 87.48 feet to a point; 50. 261° 05' 30" 28.16 feet to a point; 51. 266° 13' 128.24 feet to a point; 52. 270° 26' 114.47 feet to a point; 53. 260° 09' 81.24 feet to a point; 54. 262° 27' 166.66 feet to a point; 55. 261° 47' 108.98 feet to a point; 56. 243° 34' 33.10 feet to a point; 57. 259° 14' 30" 37.03 feet to a point; 58. 265° 34' 30" 77.10 feet to a point; 59. 262° 59' 118.99 feet to a point; 60. 256° 19' 39.78 feet to a point; 61. 262° 44' 82.08 feet to a point; 62. 267° 50' 34.11 feet to a point; 63. 265° 25' 63.09 feet to a point; 64. 273° 36' 30" 112.92 feet to a point; 65. 268° 50' 151.03 feet to a point; 66. 274° 59' 30" 35.27 feet to a point; 67. 268° 30' 30" 48.40 feet to a point; -5- Exhibit C Thence, for the next three (3) courses following along the Westerly side of old railroad and along the remainder of Grant 2029 to S. W. Makahiki: 68. 15° 00' 431.60 feet to a point; 69. 0° 23' 223.30 feet to a point; 70. 333° 44' 145.20 feet to a point; Thence, for the next seven(7) courses following along the Westerly side of old railroad and along the remainder of Grant 1453 to John Cavanah: 71. 319° 08' 63.63 feet to a point; 72. 327° 12' 30" 92.54 feet to a point; 73. 333° 41' 55.11 feet to a point; 74. 341° 52' 42.41 feet to a point; 75. 350° 21' 65.77 feet to a point; 76. 357° 11' 30" 87.84 feet to a point; 77. 7° 46' 82.65 feet to a point; 78. 17° 59' 209.88 feet along the Westerly side of old railroad and along the remainders of Grant 1453 to John Cavanah and Grant 1463 to Keawe to a point; Thence, for the next ten (10) courses following along the Westerly side of old railroad and along the remainder of Grant 1463 to Keawe: 79. 15° 46' 30" 221.91 feet to a point; 80. 350° 40' 30" 86.03 feet to a point; 81. 346° 02' 30" 127.39 feet to a point; 82. 347° 43' 68.36 feet to a point; 83. 356° 37' 108.84 feet to a point; 84. 358° 09' 110.66 feet to a point; 85. 6° 27' 30" 75.31 feet to a point; -6- Exhibit C 86. 357° 30' 30" 143.26 feet to a point; 87. 8° 45' 30" 30.57 feet to a point; 88. 359° 52' 108.27 feet to a point; 89. 265° 47' 29.79 feet along the remainder of Grant 1463 to Keawe to a point; Thence, for the next eight (8) courses following along the Easterly side of old railroad and along the remainder of Grant 1463 to Keawe: 90. 357° 3 3' 107.96 feet to a point; 91. 352° 21' 72.88 feet to a point; 92. 356° 43' 30" 32.40 feet to a point; 93. 353° 27' 38.77 feet to a point; 94. 350° 36' 29.09 feet to a point; 95. 339° 51' 130.13 feet to a point; 96. 329° 39' 30" 32.22 feet to a point; 97. 326° 06' 51.01 feet to a point; 98. 324° 59' 10.48 feet along the Westerly face of stonewall and along the remainder of Royal Patent 5336, Land Commission Award 9413 to Kahana to a point; 99. 320° 39' 115.81 feet along the remainder of Royal Patent 5336, Land Commission Award 9413 to Kahana to a point; 100. 67° 26' 30" 92.41 feet along wire fence and along Grant 992 to W. Whitmarsh to a point; 101. 70° 35' 63.69 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point; 102. 67° 10' 30" 124.47 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point; 103. 72° 45' 45" 371.54 feet along Grant 992 to W. Whitmarsh to a point; -7- Exhibit C 104. 79° 49' 199.17 feet along Grant 992 to W. Whitmarsh to a point; Thence, for the next twenty-three (23) courses following along middle of stonewall and along Grant 992 to W. Whitmarsh: 105. 82° 05' 30" 51.64 feet to a point; 106. 83° 18' 181.52 feet to a point; 107. 84° 58' 30" 118.82 feet to a point; 108. 85° 30' 30" 145.13 feet to a point; 109. 91° 09' 79.55 feet to a point; 110. 82° 04' 95.77 feet to a point; 111. 82° 31' 45" 212.72 feet to a point; 112. 359° 15' 512.31 feet to a point; 113. 268° 21' 280.72 feet to a point; 114. 259° 47' 379.67 feet to a point; 115. 260° 53' 149.26 feet to a point; 116. 259° 07' 153.59 feet to a point; 117. 266° 02' 30" 90.63 feet to a point; 118. 250° 32' 115.64 feet to a point; 119. 240° 54' 54.22 feet to a point; 120. 246° 41' 140.89 feet to a point; 121. 256° 30' 30" 95.53 feet to a point; 122. 240° 04' 30" 52.97 feet to a point; 123. 245° 12' 30" 66.16 feet to a point; 124. 257° 45' 30" 34.33 feet to a point; 125. 239° 59' 72.54 feet to a point; 126. 250° 39' 30" 70.76 feet to a point; -8- Exhibit C 127. 246° 08' 111.93 feet to a point; 128. 332° 14' 1,055.02 feet along the remainder of Grant 865 to John Nakookoo to a point; Thence, for the next four(4) courses following along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions: 129. 64° 12' 628.00 feet to a point; 130. 79° 26' 602.00 feet to a point; 131. 77° 00' 987.00 feet to a point; 132. 72° 13' 704.78 feet to a point; 133. 154° 42' 918.93 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainder of Grant 1587 to John Peters on a curve to the right with a radius of 1,030.00, the chord azimuth and distance being: 134. 174° 32' 30" 699.21 feet to a point; 135. 194° 23' 350.20 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainders of Grant 1587 to John Peters and Grant 1463 to Keawe on a curve to the left with a radius of 1,270.00 feet, the chord azimuth and distance being: 136. 165° 33' 1,224.95 feet to a point; 137. 136° 43' 68.92 feet along the remainder of Grant 1463 to Keawe to a point; Thence, following along the remainder of Grant 1463 to Keawe on a curve to the right with a radius of 1,030.00 feet, the chord azimuth and distance being: 138. 149° 59' 30" 473.03 feet to a point; 139. 163° 16' 839.35 feet along the remainders of Grant 1463 to Keawe, Grant 1453 to John Cavanah and Grant 2029 to S. W. Makahiki to a point; -9- Exhibit C Thence, following along the remainder of Grant 2029 to S. W. Makahiki on a curve to the left with a radius of 470.00 feet, the chord azimuth and distance being: 140. 136° 23' 15" 424.98 feet to a point; 141. 165° 15' 189.91 feet along Grant 1651 to Charles Hall to the point of beginning and containing an area of 295.539 Acres. (Refer to Parcel 2 as shown on Exhibit "A") SECTION 2. Section 25-88, Article 3, Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of properties described hereinafter as follows: The district classification of the following area situated at Halekii and Keekee 1st, South Kona, Hawaii, shall be Agricultural (A-1a): PARCEL 3: Beginning at the Northeasterly corner of this parcel of land, being also the Northwesterly corner of Lot 39 of Kona Scenic Subdivision, Unit II (File Plan 1591) and being a point on the Southerly boundary of Grant 865 to John Nakookoo, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 2,272.75 feet North and 8,616.61 feet East and running by azimuths measured clockwise from True South: 1. 350° 44' 55" 482.03 feet along Lots 39, 38, 37, 36, 35 and 34 of Kona Scenic Subdivision, Unit II (File Plan 1591) and along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions and along the Westerly end of Haleki'i Street to a point; 2. 78° 30' 470.15 feet along Lot 3 (Government Land - County of Hawaii) to a point; 3. 348° 30' 438.70 feet along Lot 3 (Government Land - County of Hawaii) to a point; 4. 266° 28' 187.31 feet along Lot 3 (Government Land - County of Hawaii) to a point; -10- Exhibit C Thence, for the next eleven (11) courses following along middle of stonewall: 5. 4° 59' 157.50 feet along Lots 22 and 21 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 6. 17° 24' 30" 102.93 feet along Lots 21 and 20 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 7. 7° 45' 30" 174.98 feet along Lots 20 and 19 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 8. 91° 17' 30" 56.46 feet along Lot 18 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 9. 355° 54' 30" 333.18 feet along Lots 18 and 17 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; Thence, for the next four (4) courses following along Grant 866 to Kapule: 10. 86° 02' 30" 309.93 feet along Lot 2 to a point; 11. 80° 19' 207.35 feet along Lot 1 to a point; 12. 75° 14' 183.86 feet along Lot 1 to a point; 13. 79° 02' 674.13 feet along Lot 1 to a point; 14. 177° 38' 634.16 feet along the remainder of Grant 977 to Panaunau to a point; 15. 75° 14' 1,338.05 feet along Grant 977 to Panaunau to a point; 16. 150° 55' 956.00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 17. 251° 45' 902.30 feet along Grant 865 to John Nakookoo to a point; -11- Exhibit C Thence, for the next thirty-six (36) courses following along middle of stonewall and along Grant 865 to John Nakookoo: 18. 250° 02' 30" 41.72 feet to a point; 19. 238° 11' 30" 99.82 feet to a point; 20. 246° 13' 93.37 feet to a point; 21. 253° 29' 121.82 feet to a point; 22. 257° 51' 121.61 feet to a point; 23. 249° 33' 59.76 feet to a point; 24. 245° 51' 177.23 feet to a point; 25. 248° 02' 30" 92.17 feet to a point; 26. 240° 26' 30" 60.37 feet to a point; 27. 254° 58' 110.46 feet to a point; 28. 258° 29' 24.30 feet to a point; 29. 274° 56' 30" 31.91 feet to a point; 30. 260° 18' 30" 148.31 feet to a point; 31. 253° 43' 47.09 feet to a point; 32. 243° 21' 30" 89.60 feet to a point; 33. 263° 53' 30" 70.49 feet to a point; 34. 254° 39' 30" 21.88 feet to a point; 35. 269° 41' 41.10 feet to a point; 36. 288° 24' 45.97 feet to a point; 37. 255° 29' 30" 27.38 feet to a point; 38. 241° 21' 30.35 feet to a point; 39. 227° 12' 30" 53.91 feet to a point; 40. 216° 24' 30" 55.73 feet to a point; 41. 238° 55' 30" 27.24 feet to a point; -12- Exhibit C 42. 255° 23' 30" 29.74 feet to a point; 43. 271° 22' 69.73 feet to a point; 44. 265° 04' 29.52 feet to a point; 45. 275° 29' 30" 98.69 feet to a point; 46. 271° 04' 85.71 feet to a point; 47. 277° 42' 30" 71.32 feet to a point; 48. 269° 46' 21.84 feet to a point; 49. 270° 48' 110.24 feet to a point; 50. 268° 22' 91.02 feet to a point; 51. 258° 19' 92.53 feet to a point; 52. 270° 26' 57.58 feet to a point; 53. 265° 38' 177.70 feet to the point of beginning and containing an area of 94.387 Acres, more or less. (Refer to Pacel 3 as shown on Exhibit "A") The district classification of the following area situated at Halekii, Keekee 1st and 2nd, Ilikahi, Kanakau 1st and 2nd, Kalukalu 1st, 2nd, and 3rd and Onouli 1st, South Kona, Hawaii, shall be Agricultural (A-1a): PARCEL 4: Beginning at the Southeasterly corner of this parcel of land, being also a point on the Northerly boundary of Grant 1162 to F. O. Schulze, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 4,046.78 feet South and 6,502.93 feet East and running by azimuths measured clockwise from True South: 1. 65° 45' 54" 1,071.96 feet along middle of stonewall and along Grant 1162 to F. O. Schulze to a point; 2. 78° 08' 30" 1,407.43 feet along middle of stonewall and along Grant 1162 to F. O. Schulze to a point; Thence, for the next three (3) courses following along the remainder of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole: -13- Exhibit C 3. 203° 12' 488.09 feet to a point; Thence, following on a curve to the left with a radius of 870.00 feet, the chord azimuth and distance being: 4. 172° 50' 30" 879.41 feet to a point; 5. 142° 29' 272.49 feet to a point; Thence, following along the remainders of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole, Grant 1160 to H. N. Greenwell, and Grant 1576 to Lohi on a curve to the right with a radius of 1,13 0.00 feet, the chord azimuth and distance being: 6. 169° 47' 1,036.55 feet to a point; 7. 197° 05' 307.17 feet along the remainders of Grant 1576 to Lohi and Grant 1464 to Ialua to a point; Thence, following along the remainder of Grant 1464 to Ialua on a curve to the left with a radius of 645.00 feet, the chord azimuth and distance being: 8. 183° 07' 311.35 feet to a point; 9. 169° 09' 54.98 feet along the remainder of Grant 1464 to Ialua to a point; Thence, following along the remainders of Grant 1464 to Ialua and Grant 1175 to Nakauwaa on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 10. 186° 06' 411.07 feet to a point; 11. 203° 03' 162.63 feet along the remainder of Grant 1175 to Nakauwaa to a point; Thence, following along the remainder of Grant 1175 to Nakauwaa and Grant 1177 to Kamakahiona on a curve to the left with a radius of 645.00 feet, the chord azimuth and distance being: 12. 186° 42' 30" 362.96 feet to a point; -14- Exhibit C 13. 170° 22' 60.05 feet along the remainder of Grant 1177 to Kamakahiona to a point; Thence, following along the remainders of Grant 1177 to Kamakahiona and Grant 1176 to Kini on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 14. 186° 12' 384.70 feet to a point; Thence, for the next five (5) courses following along the remainder of Grant 1176 to Kini: 15. 202° 02' 35.26 feet to a point; Thence, following on a curve to the left with a radius of 30.00 feet, the chord azimuth and distance being: 16. 157° 02' 42.43 feet to a point; 17. 112° 02' 85.32 feet to a point; Thence, following on a curve to the left with a radius of 645.00 feet, the chord azimuth and distance being: 18. 97° 14' 329.53 feet to a point; 19. 82° 26' 397.26 feet to a point; Thence, following along the remainders of Grant 1176 to Kini and Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 20. 118° 34' 831.43 feet to a point; 21. 154° 42' 342.97 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 22. 252° 13' 704.78 feet along Grant 1587 to John Peters and Grant 865 to John Nakookoo to a point; -15- Exhibit C Thence, for the next three (3) courses following along Grant 865 to John Nakookoo: 23. 257° 00' 987.00 feet to a point; 24. 259° 26' 602.00 feet to a point; 25. 244° 12' 628.00 feet to a point; 26. 330° 55' 956.00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 27. 255° 14' 1,338.05 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 28. 357° 38' 634.16 feet along Grant 977 to Panaunau to a point; 29. 76° 40' 30" 1,596.74 feet along Grant 1177 to Kamakahiona to a point; 30. 76° 40' 30" 44.81 feet along Grant 1177 to Kamakahiona to a point; Thence, for the next six (6) courses following along the Westerly side of old railroad: 31. 353° 25' 54.23 feet to a point; 32. 346° 06' 95.32 feet to a point; 33. 342° 16' 30" 289.54 feet to a point; 34. 341° 04' 132.29 feet to a point; 35. 345° 33' 48.71 feet along the remainders of Grant 1177 to Kamakahiona and Grant 1175 to Nakauwaa to a point; Thence, for the next six (6) courses following along the remainder of Grant 1175 to Nakauwaa: 36. 350° 55' 30" 47.80 feet to a point; -16- Exhibit C 37. 260° 45' 8.34 feet to a point; Thence, for the next four(4) courses following along the Westerly face of stonewall and along the Easterly side of old railroad: 38. 353° 43' 30" 58.69 feet to a point; 39. 1° 03' 30" 50.75 feet to a point; 40. 4° 06' 30" 32.09 feet to a point; 41. 9° 18' 30" 46.75 feet to a point; Thence, for the next four(4) courses following along the Northerly face of stonewall: 42. 79° 50' 28.51 feet along Grant 787 to H. N. Greenwell to a point; 43. 63° 01' 30" 205.62 feet along Grant 787 to H. N. Greenwell to a point; Thence, for the next twenty-six (26) courses following along the remainder of Grant 787 to H. N. Greenwell: 44. 58° 15' 190.84 feet to a point; 45. 95° 12' 30" 36.26 feet to a point; Thence, for the next ten (10) courses following along the Westerly face of stonewall: 46. 340° 55' 30" 51.47 feet to a point; 47. 336° 12' 30" 95.40 feet to a point; 48. 340° 54' 85.38 feet to a point; 49. 338° 48' 30" 46.81 feet to a point; 50. 342° 23' 65.75 feet to a point; 51. 334° 35' 30" 65.95 feet to a point; 52. 332° 23' 82.87 feet to a point; 53. 324° 00' 11.13 feet to a point; 54. 332° 36' 30" 113.50 feet to a point; -17- Exhibit C 55. 347° 43' 24.68 feet to a point; Thence, for the next four (4) courses following along the Westerly side of old railroad: 56. 338° 19' 61.45 feet to a point; 57. 327° 39' 30" 17.91 feet to a point; 58. 347° 16' 94.25 feet to a point; 59. 344° 55' 30" 113.58 feet to a point; 60. 267° 05' 30" 16.83 feet to a point; Thence, for the next six (6) courses following along middle of stonewall: 61. 341° 48' 30" 54.25 feet to a point; 62. 346° 24' 30" 109.52 feet to a point; 63. 330° 20' 62.30 feet to a point; 64. 336° 48' 111.89 feet to a point; 65. 325° 21' 106.90 feet to a point; 66. 62° 18' 30" 29.22 feet to a point; Thence, for the next three (3) courses following along Westerly face of stonewall: 67. 337° 28' 30" 112.46 feet to a point; 68. 337° 08' 183.98 feet to a point; 69. 337° 36' 30" 153.52 feet to a point; 70. 254° 02' 30" 25.45 feet along the Southerly face of stonewall and along Grant 787 to H. N. Greenwell to a point; Thence, for the next seven (7) courses following along the Westerly side of old railroad and along the remainder of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole: 71. 338° 26' 168.87 feet to a point; 72. 337° 34' 153.12 feet to a point; -18- Exhibit C 73. 335° 16' 30" 329.74 feet to a point; 74. 336° 16' 30" 122.94 feet to a point; 75. 334° 38' 30" 193.93 feet to a point; 76. 335° 59' 267.46 feet to a point; 77. 329° 13' 30" 141.50 feet to the point of beginning and containing an area of 271.415 Acres. (Refer to Parcel 4 as shown on Exhibit ""A".) All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part hereof(herein after referred to as "subject property"). SECTION 3. These changes in district classification are conditioned upon the following: (A) The applicant, successors or assigns shall be responsible for complying with all of the stated conditions of approval; (B) The effective date of the rezoning shall be upon: (1) the execution of an agreement, between the applicant, Lyle Anderson, and the County through its Department of Water Supply and Planning, to assign water commitment rights in the Kealakekua Source Agreement to the current landowners of the subject property within one-hundred-eighty (180) days from the effective date of this ordinance; provided that a maximum ninety (90) day extension may be granted by the Planning Director with reasonable and sufficient justification; and (2) the acceptance by the Department of Water Supply of the required water commitment payment in accordance with its "Water Commitment Policy" within one-hundred-eighty (180) days from the effective date of this ordinance; (C) Subdivision plans for any portion of the subject property shall be submitted to the Planning Department and Tentative Subdivision Approval secured within four (4) years from the effective date of this rezoning as determined in Condition B; Final Subdivision Approval shall be secured within five (5) years from the effective date of this rezoning as determined in Condition B. For the purpose of this ordinance, -19- Exhibit C Final Subdivision Approval shall be defined as the subdivision of any agricultural zoned lot to a lot less than twenty (20) acres in size within the subject property; (D) A wastewater disposal system shall constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works, whichever is applicable; (E) All electrical and communication utilities lines within the subject property shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site; (F) A Flood Study of the subject property shall be submitted to the Planning Department in conjunction with plans submitted for subdivision review for any portion of the subject property. Drainage improvements shall be constructed in a manner meeting with the approval of the Department of Public Works, prior to the issuance of Final Subdivision Approval for the subject property; (G) An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division, prior to submitting plans for subdivision review. The Plan shall consist of three subplans: (1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim protection/preservation plan for the sites to undergo preservation, and (3) an interpretation plan which shall include buffer zones, signage and long-range preservation concerns which may be submitted at a later date. Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the subject property; (H) A final comprehensive public access plan. to be developed in consultation with community groups. shall be submitted to and approved by the Planning Director prior -20- Exhibit C to final subdivision approvaLor any land alteration activity, whichever comes first. The final comprehensive public access plan shall be developed in consultation with the Planning Director and the Department of Land and Natural Resources and shall include mauka-makai and lateral shoreline accees arking area sl, signage, emerenc res•ons- onsiderations restrictions .n us- i. an aro ision • recreational and restroom facilities at appropriate locations, and related improvements [The applicant shall be responsible to comply with Condition No. 8 of SMA Permit No. 345 issued to the applicant on November 5, 1993]; provided, that the construction of the coastline park and access ways shall be subject to the obtaining of all necessary discretionary permits (e.g., Conservation District Use Approval, Special Management Area Use Permit, etc.); provided, further, that the applicant shall be responsible to comply with the following terms and conditions: [(1) The applicant shall develop and submit a comprehensive public shoreline access plan for the subject property and the properties described in the SMA Permit No. 345, subject to the review and approval by the Planning Director, in consultation with the Department of Land and Natural Resources, prior to Final Subdivision Approval, or any land alteration activity, whichever comes first;] W[(2)] An area comprising twenty-five percent (25%) of the total park area, as shown on Exhibit "E" attached hereto and made a part hereof, shall be developed and improved by the applicant or its agent in phases within five (5) years from the date Final Subdivision Approval is obtained on the subject property. The first phase shall be completed and open to the public within thirty (30) days following the opening of the golf course; [(3) No more than a total land area of twelve (12) acres shall be permitted to be constructed, operated and maintained as part of the applicant's golf course, approved as Use Permit No. 115, and included within the coastline park or the existing conservation district lands;] 12),[(4)] [A] Upon onenin_g_the firs phase of the park area, a minimum of twenty-five (25) public parking stalls in addition to parking stalls for residents, guests, and employees within the subject property and the applicant's adjacent lands at the -21- Exhibit C principal shoreline access parking area(s), signage and provisions for public access for night fishing and marine food gathering purposes over designated vehicular and pedestrian access routes subject to restrictions which limit said uses to recreation uses only, and other restrictions which provide for the health and safety of the general public and residents alike. The number of parking stalls shall be increased commensurately with the approval of additional park phases in accordance with the public access plan; and (3)[(5)] The public shoreline access plan shall also integrate where appropriate, any public accessway(s) to interpretive trail system(s) and to the historical and archaeological sites to be approved by the Planning Director, in consultation with the Department of Land and Natural Resources in conjunction with the detail mitigation plan for the park area situated in the Conservation district. (I) Prior to final approval of a small lot subdivision plat within the subject property, the applicant shall convey to the County of Hawaii by way of a perpetual easement the right to public access and recreational use of[the] its privately owned coastline park and trails; provided, that restrictions [in accordance with Chapter 115, Hawaii Revised Statutes,] will be allowed to be established by the applicant, subject to the approval of the Planning Director, to promote public health and safety and the general security of the premises for residents and guest of the project to protect the area's pristine condition, and to minimize any liability to the applicant, pursuant to Chapter 520, Section 520-4, Hawaii Revised Statutes. The applicant shall retain ownership of its [own the] coastline park and trails in fee simple and maintain all lands in the coastline park area and operate such facility for public recreational use in accordance with the above terms and conditions. This condition shall not be applicable to any roadway, trail or other rights-of-way, which are deemed public highways or trails as defined in Chapter 264, Hawaii Revised Statutes; (J) Should any unidentified sites or remains such as artifacts, shell, bone, or charcoal deposits, human burials, rock or coral alignments, pavings or walls be encountered, work in the immediate area shall cease and the Planning Director shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken; -22- Exhibit C (K) A solid waste management plan shall be prepared meeting with the approval of the Department of Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the subject property. Approved recommendations and mitigation measures shall be implemented at a time and in a manner meeting with the approval of the Department of Public Works; (L) Roadway improvements and access(es) to the subject property, including all plans and construction, shall meet with the approval of the Department of Public Works. Prior to the issuance of Final Subdivision Approval for any portion of the subject property, the applicant shall: (1) construct the channelization and signalization of the Mamalahoa Highway- Haleki'i Street intersection; (2) determine the final right-of-way alignment of the entire Mamalahoa Highway Bypass [road as shown in Exhibit "C",] between the approximate vicinity of Keauhou and Captain Cook, including its intersection areas and its acquired ownership or control. The applicant shall provide the Planning Director with a metes and bounds description of each road right-of-way segment involved and evidence of its ownership or control as deemed necessary by the Planning Director. In lieu of the applicant obtaining or acquiring ownership or control of any segment [within the Phase Two portion] of the Mamalahoa Highway Bypass [road], the requirement shall be deemed fulfilled upon the county's formal initiation of condemnation action for such segments and an agreement has been entered into [to] between the applicant and the county providing for the applicant's reimbursement to the county for the acquisition of the lands condemned; (3) construct [Phase One of] the Mamalahoa Highway Bypass [as shown in Exhibit "C",] in its entirety between the approximate vicinity of Keauhou and Captain Cook, consisting of two lanes with sufficient right-of-way for a total of four lanes, provided further that the section of the Mamalahoa Highway Bypass between Keauhou and Haleki'i_Street shall be completed and available -23- Exhibit C for public use prior to the occupancy of any dwelling unit within the entire project area; [(4) construct the channelization improvements on Kuakini Highway at its intersection with the north end of the Mamalahoa Bypass;] (4) [(5)] construct the extension of Haleki'i Street through the subject property as generally reflected in Exhibit "B", which phasing of improvements shall be approved by the Department of Public Works. [A] If, before the completion and opening of the entire Mamalahoa Highway Bypass, a portion of said bypass is completed and opened, and said portion provides a connection to Haleki'i Street, a barricade or breakaway gate, meeting with the requirements of the Department of Public Works, shall be installed by the applicant as part of the required Haleki'i Street improvements, [prior to the completion of Phase 1 of the Mamalahoa Highway Bypass or the construction of any dwelling unit or golf course clubhouse facility, whichever occurs first.] The purpose of this condition is to prevent the use of Haleki'i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and a portion [the Phase 1 section ]of the Mamalahoa Highway Bypass until the entire proposed Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook has been completed and opened for general public use; and (5)[(6)] provide roadway stub-outs, generally shown in Exhibit "B", to provide future connections between the subject property, [the Alii Highway, and southern extensions there from;] and the adjacent properties to the north and south; provided that such stub-outs shall be constructed in accordance with the construction phasing as approved by the Department of Public Works. The applicant shall construct the Mamalahoa Highway Bypass to [State Department of Transportation-Highways Division Standards for a regional arterial bypass highway or segments thereof, and] standards set forth by the Department of Public Works for Alii i•hwa with such modification as • a be deemed nec- sa . _ I e.artment o Public Works. The applicant shall provide a landscape buffer along highway sections within five hundred feet of existing dwellings. , as required by the chief engineer, to -24- Exhibit C reduce the impacts of noise and light on the residents therein and to generally beautify the highway appearance in such locations[. Roadway segments providing the bypass's connection with the existing highways at its north termini shall be built to county dedicable standards for secondary arterials, pursuant to Chapter 23 of the Hawaii County Code, instead of the State DOT standards for major arterials, in the case where the roadway segment is consistent with a Department of Transportation plan which provides for such segments to be a lesser, connector road and for the later extension of the arterial bypass highway to be substantially further north or south before merging with other arterial roadways]; provided that the applicant shall enter into a reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction, land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom the county may determine as benefiting from the Mamalahoa Highway Bypass [Highway] and which funds are available to the county for such purpose; and provided further, that the total amount of reimbursement due to the applicant shall not exceed the total cost of land acquisition, design and construction of the Mamalahoa Highway Bypass [Highway] incurred by the applicant, less the pro rata portion attributed to the subject property; [(M) Prior to Final Subdivision Approval of any portion within Area 2 as shown in Exhibit "D" except for the golf course, golf clubhouse, lodge and related facilities, the applicant shall: (1) complete the construction of the Phase Two of the Mamalahoa Bypass consisting of two lanes with sufficient right-of-way for a total of four lanes as shown in Exhibit "C", meeting with the approval of the Department of Public Works, in consultation with the State Department of Transportation-Highways Division; and (2) complete the construction of the Mamalahoa Bypass channelization improvements at its intersection with Mamalahoa Highway and Napo'opo'o Road, meeting with the requirements of the Department of Public Works, in consultation with the State Department of Transportation-Highways Division;] -25- Exhibit C (M)[(N)] All roadway improvements stated in Condition L [and M] of this ordinance shall be dedicated to the [appropriate government entity. Those improvements associated with the Mamalahoa Highway Bypass shall by offered to the State Director of Transportation pursuant to Section 264-1 of the Hawaii Revised Statutes. Any connector roadways, and any portion of the Mamalahoa Highway Bypass not accepted by the State Director of Transportation shall be dedicated to the County, as provided by law] County of Hawaii; (N)[O)] To ensure that the Goals and Policies of the Recreational Element of the General Plan are implemented, the applicant shall provide [a maximum of] two acres of land abutting the north side of Kona Scenic Park for public purposes prior to Final Subdivision Approval of the subject property. (0)[(P)] In lieu of actual construction of infrastructural improvements as required under Conditions D, F, H, K, and L,[and M,] the applicant may enter into an agreement with the Planning Director to assure the county that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable to the Planning Director and the Corporation Counsel. Upon execution of such agreement and/or filing of the security with the County, Final Subdivision approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements; [(Q) The Applicant shall participate in the funding and construction of any regional roadway improvements as may be required by the State Department of Transportation, provided that any costs borne by the applicant shall be credited and limited to the amount of its fair share contribution for regional road and traffic impacts, as required in Conditions L and M]; in[(R)] It shall be demonstrated to the satisfaction of the Planning Director that agricultural activity is being conducted on the subdivided lots within three years from the date of Final Subdivision Approval. For the purposed of this condition, "agriculture" shall be defined as the cultivation of crops, including but not limited to flowers, vegetable, foliage, and fruits that are propagated for economic or personal use. An agricultural activity will be considered satisfactory: -26- Exhibit C (1) if such activity is implementing a conservation program for the affected property(ies), as approved by the applicable soil and water conservation district directors and filed with the Soil Conservation Service; (2) if it provides a source of income to the person(s) who reside on the property; or (3) if the property is dedicated for agriculture uses in accordance with applicable Tax Department procedures and that such agriculture dedication shall be made a deed covenant and duly recorded with the State Bureau of Conveyances and a copy of the recorded deeds shall be filed with the Planning Department within one year from the date of Final Subdivision Approval. Each approved lot must comply with at least one of the above requirements to satisfy the conditions of approval of this ordinance; ([(S)] Restrictive covenants in the deeds of all the proposed lots shall prohibit the construction of a second dwelling unit on each lot; provided that this shall not preclude the construction of a guest house as defined under Chapter 25 of the Hawaii County Code. A copy of the proposed covenant(s)to be recorded with the Bureau of Conveyances shall be submitted to the Planning Department for review and approval prior to final subdivision approval. A copy of the approved covenant shall be recited in an instrument executed by the applicant and the county and recorded with the Bureau of Conveyances likewise prior to final subdivision approval; (R)[(T)] [The Applicant shall pay its fair share contribution to address potential regional impacts of the subject property with respect to park, fire, police, solid waste disposal facilities, sewer and roads. The fair share contribution shall be initially based on the representations contained within the change of zone application and may be increased or reduced proportionally if the agricultural lot counts are adjusted. The fair share contributions described below shall be adjusted annually based on the percentage change in the Honolulu Consumer Price Index (HCPI). The fair share contribution for each agricultural zoned lot of the subject property less than ten acres in size shall be based on a maximum density for each lot as determined by the zoning resulting from this change of zone. The fair share contribution in a form of cash, land, facilities, or -27- Exhibit C any combination thereof shall have a maximum combined value of$ 4,701,205.74. In lieu of paying the fair share contribution, the applicant may construct such improvements/facilities related to park, fire, police, solid waste disposal facilities, sewers and roads with the approval of the appropriate agency(ies). Any contributions required by this ordinance that exceed the fair share requirement of this proposed development shall, at the applicant's request be credited towards any of the applicant's future developments that require infrastructural impact contributions; ] The applicant shall make its fair share contribution to mitigate the potential regional impacts of the subject property with respect to parks and recreation,fire,,police, solid waste disposal facilities, andioads. The amount of the fair share contribution shall be the sum which is the product of multiplying the number of lots proposed to be subdivided by the amounts allocated hereinbelow for each such lot, and shall become due and payable prior to final subdivision approval for any portion of the subject property or its increments. If the subject property is subdivided in two or more increments, the amount of the fair share contribution due and payable prior to final subdivision approval of each increment shaft be a sum calculated in the same manner according to the number of additional proposed lots in each such increment. The fair share contribution for each lot, except for lots larger than ten acres in size or which are committed exclusively for golf course and park purposes, shall be based on the maximum allowable density of buil ing sites as determined by the zoning of such lot. The fair share contribution in a form of cash, land, facilities, or any combination thereof acceptable to the director in consultation with the affected agencies shall have a maximum combined value of$7,239.16 per lot. Based upon the applicant's representation of intent to subdivide and develop up to 400 lots, the indicated total fair shar- ontri. tion ',2 8'_ 664.00 how-ver th- otal amount h.11 b- in r-.sed o_ reduced in proportion with the actual number of subdivided lots according to the calculation and payment provisions set forth in this Condition 0. The fair share contri.utio hall .- allocated a f.llows: (1) $3.490.85 per lot, for an indicated total of$1,396.340.00 to the County to support park and recreational improvements and facilities-, -28- Exhibit C $168.40 per lot. for an indicated total of$67360.00 to the County to support police facilities; (3) $332.61 per lot.far an indicated total of$133,044.00 to the County to support fire facilities; (4) $145.62 per lot, for an indicated total of$58,248.00 to the County to support solid waste facilities; (5) $3.101.68 per lot, for an indicated total of$1.240,672.00 to the State or County to support road and traffic improvements. The fair share contributions described above shall be adjusted annually beginning three years after the effective date of this ordinance, based on the percentage change in the Honolulu Consumer Price Index (HCPI). In lieu of p.ying the fair share contribution, the applicant may construct improvements/facilities related to parks and recreation. fire,police, solid waste disposal facilities, and roads within the region impacted by the proposed development. subject to the approval of the planning. director. The cost of constructing the improvements required in Conditions H. K and L shall be credited against the sum specified in Condition R(1) for parks and recreation. Condition R(4) for solid waste facilities, and in Condition R(5) for road and traffic improvements. For purposes of administering CQnditio _E., the value of land contributed or the cost of any improvements required or main lieu of the fair share contribution shall be such amo__. t . a. . .ved 'l. .;_ in Director upon onsultati.n with the a..r. .riate a!e cies [(U) The Applicant shall conform, to the best extent practicable, with the guidelines as provided within the Strategies for Energy Efficient Architecture by Hawaiian Design and the State Model Energy Code, in the construction of dwellings within the subject property; ] (S)[(T)] In the event that the State Department of Education adopts an educational facilities impact fee program, the applicant shall participate in the requirements of the program; -29- Exhibit C (T)[(W)] Comply with all applicable laws, rules, regulations and requirements, including those of the Department of Health, Fire, and the Department of Water Supply; (U)[(X)] Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance; (V)[(Y)] An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone. The report shall address in detail the status of the development and the compliance with the conditions of approval. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required; and, (W)[(Z)] An extension of time for the performance of conditions within the ordinance, with the exception of Condition C, may be granted by the Planning Director upon the following circumstances: (1) the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, and that are not the result of their fault or negligence; (2) granting of the time extension would not be contrary to the General Plan or Zoning Code; (3) granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; (4) the time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year); and -30- Exhibit C (5) should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant's request to the County Council for appropriate action. Further, should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate rezoning of the area to its original or more appropriate designation." SECTION 2. In the event that any portion of the ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 3. This ordinance shall take effect upon its approval. INTRODUCED BY: COUNCIL MEMBER, COUNTY OF H'i% Al! Hilo, Hawaii Date of Introduction: December 15 , 1995 Date of 1st Reading: December 15 , 1995 Date of 2nd Reading: January 3 , 1996 Effective Date: January 15 , 1996 A" ROVED as to Fr"err. and GAUTY gelc,.,..1.7„," ,L._..-- DE COR �!'PORATION COUNSEL COUNTY OF HAWAII Date //d .�m ..__w..._...u_« -31- Exhibit C 1 H - : ' 's 2 Y_j 1 !: - '211 i a ! lJsl I a 1 i t :i s 1 . 2 ; i i slilig • is f1 i f i : i z i , 3 : Y3Z i i 1• �.'1 : : r - = r ° iii - 1 71!11 s1`•I ; I 1 0 i ' j 3! 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N‘-`lski ..,,.,/k.•\1-'t‘\ •"' . ) ./ \' '- ' • •" 'ti ..,(' .,./ -- • ii ok,..,)\\N',,,, i,,il l. 1- • • • • Exhibit C OFFICE OF THE COUNTY CLERK County of Hawaii Hilo , Hawaii R E C r i ( DiT1141)16 Pill 7 57 r F I C E (.. .:ROLL,c4IcityphICE COUNT T' 0,KYlitSWAINOES ABS EX Introduced By: Takashi Domingo Arakaki X Date Introduced: December 15, 1995 - Bonk-Abramson X First Reading: December 15, 1995 X Published: N/A De Lima X REMARKS: Domingo X Osorio X Rath X Ray _ X Smith X 7 2 0 0 ( DRAFT 6 ) ROLL CALL VOTE Second Reading: January 3 , 1996 AYES NOES ABS EX To Mayor: January 4 , 1996 Returned: January 16 , 1996 Arakala X Effective: January 15 , 1996 Bonk-Abramson X Published January 24 , 1996 Childs X De Lima X - REMARKS: Domingo X Osorio X Rath X Ray X Smith X 7 2 0 0 I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as indicated above. ///111/ COUNCIL CHAIRMAN // -/ /i/ COUNTY CLERK Approved this _ day of /I 1 '" 19 9'4' . OF liLt ' 4,. efil, - - - ' we.OR,COUNTY • '' All BiI1 No.: 181 (Draft 6 ) Reference: C-821/PC-91 Ord.No.: 98 Exhibit C Electronically Filed THIRD CIRCUIT 3CCV-23-0000123 23-JUN-2023 08:24 AM Dkt. 75 EXH Exhibit D Development Agreement between County of Hawaii and 1250 Oceanside Partners. 1 i ' \, 1250 Oceanside Partners 74-5620 A Palani Road Suite 200 Kailua-Kona,Hawaii 96740 A00459 Exhibit D Development Agreement Table of Contents Recitals 2 Agreement 38 Definitions 6 Headings 38 Effective Date 14 Administrative Act 38 Affected Land 14 Binding Effect 38 Permitted Uses 14 Entities Obligated 38 Density of Use 15 Partial Release 39 Maximum Height 15 Compliance Certificate 39 Maximum Size 15 Satisfaction 39 Benefits 15 Final Release 39 Acquisition 15 Administration of Agreement 40 Condemnation 16 Recordation 40 Donation 18 Counterparts 40 Bypass Construction 19 Facsimile Documents 40 Dedication of Bypass 21 Notices 40 Reimbursements 22 Public Dedication 41 Roadway Stub-outs 25 Public Access Plan 26 Coastline Park 26 Guest Houses 29 General Development 29 Subsequent Changes 30 Necessary Approvals 30 1.1 Conformance 31 Annual Review 31 Material Breach 31 [ Time Extension 33 Amendment 34 Discretion to Encumber 34 Obligation to Modify 34 Written Notice 35 Cooperation 35 Assignment 35 Enforcement 36 Waiver 36 Gender 36 Parties 36 Partnership 37 Applicable Law 37 Force Majeure 37 Good Faith 38 Computation of Periods 38 Severability 38 A00460 Exhibit D Development Agreement [ 1 A00461 Exhibit D Ii LAND COURT SYSTEM REGULAR SYSTEM AFTER RECORDATION, RETURN BY MAIL (X) PICK UP ( ) l_ . To: BENJAMIN A. KUDO Dwyer Imanaka Schraff Kudo Meyer & Fujimoto 900 Fort Street Mall Suite 1800 Honolulu, HI 96813 TMK Nos: (3) 7-9-12: 03 (3) 7-9-12: 04 (3) 7-9-12: 11 (3) 8-1-04: 03 (portion) DEVELOPMENT AGREEMENT Tins DEVELOPMENT AGREEMENT ("AGREEMENT"), made this day of 1998, by and between the COUNTY OF HAWAII, a municipal corporation of the State of Hawaii, whose principal place of business and mailing address is 25 Aupuni Street, Hilo, Hawaii, acting through its mayor ("COUNTY"), and 1250 OCEANSIDE PARTNERS, a Hawaii limited partnership, dba OCEANSIDE 1250, whose principal place of A00 462 Exhibit D business and mailing address is 74-5620A Palani Road, Suite 200, Kailua-Kona, Hawaii 96740 ("OCEANSIDE"). RECITALS: A. These Recitals refer to and utilize certain capitalized terms which are defined in Paragraph (2), herein. The parties intend to refer to those definitions in conjunction with the use thereof in these Recitals. B. The Hawaii State Legislature, under Development Agreement Statute section 46-123, granted authorization to the COUNTY to enact an ordinance authorizing the executive branch of the COUNTY to enter into a development agreement with any person having a legal or equitable interest in real property, for the development of such property; C. The County Council enacted Ordinance No. 93-37 pursuant to Development Agreement Statute sedtion 46-123, which ordinance was passed into law on April 27, 1993. D. Pursuant to the Development Agreement Statute and the Development Agreement Code, the COUNTY adopted rules governing Development Agreements on May 16, 1995. E. The Development Agreement Code and the Development Agreement rules establish the procedures and requirements for the consideration of development agreements upon application by or on behalf of persons having a legal or equitable interest in property. F. OCEANSIDE is the owner in fee simple of a portion of the Property, and Lessee of the remainder of the Property. A map describing that portion of the Property owned by OCEANSIDE in fee simple and that portion that is leased is attached hereto and identified as Exhibit "A". A 00463 ( 2 Exhibit D G. OCEANSIDE or its related entity, affiliate or subsidiary plans to develop the Project on the Property. H. The Project will require a major investment by OCEANSIDE, for example, in public facilities and on- and off-site improvements, to make the Project feasible. I. The Project was reviewed and planned according to the Land Use Regulations. J. OCEANSIDE has applied for and the COUNTY has granted a number of Approvals for the Project. K. As part of OCEANSIDE's applications for Approvals from the COUNTY: 1. The COUNTY has examined the Project's impacts on vehicular traffic conditions, and has determined that construction of the Bypass Highway will not only offset traffic impacts caused by the Project, it will also provide a public purpose by improving existing traffic conditions in the region. 2. The COUNTY has determined that the construction and development of a Coastline Park will be an asset to the COUNTY and the public by providing coastal recreational opportunities, preserving open space and archaeological sites within the Project, as well as meeting the Project's park requirements pursuant to Ordinance No. 96-7, Ordinance No. 96-8 and Special Management Area ("SMA") Permit No. 345. L. The COUNTY has concluded that development of the Project will provide many public benefits to the COUNTY through the zoning, the SMA conditions of approval, and the imposition of on- and off-site development requirements pursuant to the terms and conditions of this Agreement, including, without limitation, additional tax revenues resulting in fiscal benefits to the COUNTY, financing and/or installation and construction of infrastructure and the creation of job opportunities in and through the construction, development and use of the AOOL64 3 Exhi it Project. OCEANSIDE shall not be obligated to adhere to and perform the terms and conditions of this Development Agreement ("Agreement") until it has commenced construction of the Project and provided that any zoning approvals and permits that OCEANSIDE has received have not been challenged and overturned by or that such challenges are not pending resolution before a court of law or a comparable federal, state or county administrative body. For purposes of this paragraph, "commenced construction" shall mean that OCEANSIDE has been awarded final subdivision approval and has received all necessary construction permits for the Project. M. Pursuant to Sec. 46-121, HRS, Hawaii County Chapter Cha ter 30 and Hawaii County's Rule 1, relating to Development Agreements, the COUNTY and OCEANSIDE have It entered into this Agreement. This Agreement will: (I) provide for the parameters within which the obligations of OCEANSIDE for public and other improvements will be met; (ii) jprovide assurances to OCEANSIDE that the project will not be restricted or prohibited by the subsequent enactment or adoption of more restrictive Land Use Regulations, including but not limited to changes in zoning classifications or revocation of OCEANSIDE's Approvals, except when, with the agreement of OCEANSIDE, it becomes necessary to preserve the public health, safety and welfare; and (iii) provide appropriate assurances to OCEANSIDE that it may complete the development and construction of the Project in accordance with all Land Use Regulations and Approvals applicable to the Project on the date of this Agreement, subject to OCEANSIDE's adherence to and performance of all material terms and conditions of this Agreement. N. Use of this Agreement will reduce or eliminate the uncertainty in the Project planning and development approval process, which in turn, would encourage the efficient 96 4 Exhi it utilization of resources and minimize the economic cost to the public; allow for the orderly planning of public facilities and services; and otherwise achieve the purposes and objectives for which the Development Agreement Statute and the Development Agreement Code were enacted. This Agreement clarifies the Land Use Regulations and Approvals, which in turn provide for the overall design, construction and development of the Project and all on-site and off-site improvements and appurtenances associated therewith, in the manner specified in this Agreement, including, without limitation, the design, construction and development of projects ( to provide benefits to the region and the COUNTY such as the Bypass Highway and the Coastline Park as set forth herein. O. OCEANSIDE submitted an Application to the Office of the Mayor on , 1998 pursuant to Development Agreement Code section 5. P. On , 1998, pursuant to Development Agreement jCode section 5(a) and Development Agreement Statute section 46-128, the County Council held a Public Hearing on the draft of this Agreement. Q. On , 1998, pursuant to Development Agreement Code sections 5(d) and 5(e) and Development Agreement Statute section 46-129, after review and comment by appropriate governmental agencies of the draft of this Agreement, and consideration of all evidence presented and heard at the Public Hearing pursuant to the Development Agreement Code, the g t e County Council found and determined that this Agreement complies and is in accordance with the County General Plan, as amended, and any applicable community development plans adopted by the County Council as of the date of the Enacting Resolution. In connection with said findings, the County Council passed the Enacting Resolution approving this Agreement for execution by the Mayor. A 0 0 4 6 6 5 Exhibit D NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Statute,the Development Agreement Code, and the Development Agreement Rules, and in consideration of the mutual covenants and agreements set forth herein, the COUNTY and OCEANSIDE mutually agree as follows: 1. REcrr u s. The recitals hereinabove are incorporated herein by this reference and made a part of this Agreement as though set forth in full herein. 2. DEFINITIONS. Whenever used in this Agreement, the terms defined below shall have the following meaning: : a. AGREEMENT. "Agreement" shall mean this Development Agreement entered into by the COUNTY and OCEANSIDE, approved by the County Council through the Enacting Resolution, and executed by the Mayor on behalf of COUNTY. [ b. APPLICATION. "Application" shall mean the application for this Agreement submitted by OCEANSIDE to the Planning Department. c. APPRAISER. "Appraiser" shall mean any unbiased appraiser, licensed and certified in the State of Hawaii and appointed as provided herein. d. APPROVALS. "Approvals" shall mean any and all permits or approvals which have been or will be received by OCEANSIDE for the Project from the COUNTY, the State, or any other governmental or quasi-governmental agency pursuant to any Land Use Regulations as of the date of this Agreement, including, without limitation: (1) Change of Zone Approval (REZ 93-5), accepted by the County Council on June 15, 1994 as Bill 182, Draft 6 and signed into law by the Mayor on June 28, 1994 as Ordinance No. 94-73, attached hereto as Exhibit "S"; and amended and superseded by A 00467 6 Exhibit D Bill 181, Draft 6 accepted by the County Council on January 3, 1996, and signed into law by the Mayor on January 15, 1996 as Ordinance No. 96-8 attached hereto as Exhibit "B" and incorporated herein by this reference. (2) Change of Zone Approval (REZ 95-12) accepted by the County Council on January 3, 1996 as Bill 158, Draft 5, and signed into law by the Mayor on January 15, 1996 as Ordinance No. 96-7 attached hereto as Exhibit "C" and incorporated herein by this reference. (3) Special Management Area Use Permit Approval (SMA 93-1) granted by the Planning Commission on November 5, 1993 (SMA Permit No. 345) attached hereto as Exhibit "D" and incorporated herein by this reference. (4) Use Permit Approval (USE 93-2) grantedPlanning by the Commission on November 5, 1993 (Use Permit No. 115) attached hereto as Exhibit "E" and incorporated herein by this reference. (5) Special Management Area Use Permit Approval (SMA 95-3) granted by the Planning Commission on September 28, 1995 (SMA Permit No. 356) attached hereto as Exhibit "F" and incorporated herein by this reference. (6) Change of Zone Approval passed by the County Council on March 7, 1997 and signed into law by the Mayor on March 13, 1997 as Ordinance 97-36 attached hereto as Exhibit " G incorporated herein by this reference. e. BOND. "Bond" shall mean a performance bond, cash bond, surety company bond, personal surety bond, or other financial assurance obtained or caused to be obtained by OCEANSIDE. Such bond shall be good for no more than five (5) years from the A00463 7 Exhibit D date the bond is issued, unless otherwise extended by the mutual agreement of the Director of the COUNTY Department of Public Works and OCEANSIDE in writing. f. BYPASS HIGHWAY. "Bypass Highway" shall mean that bypass highway between the approximate vicinity of Keauhou and Captain Cook, consisting of two (2) lanes with a sufficient Right-of-Way for a total of four (4) lanes required in part to satisfy the conditions of Approvals and to alleviate traffic congestion on the Mamalahoa Highway that has II� existed for many years. This Bypass Highway is also referred to as the "Mamalahoa Highway Bypass" under Ordinance Nos. 96-7, 96-8 and 97-36 attached hereto as Exhibits "C", "B" and "G", respectively. Further detail and description of the Bypass Highway is attached hereto as Exhibit "H" and incorporated herein by this reference. g. COASTLINE PARK. "Coastline Park" shall mean that coastline park required bythe COUNTY to be established under Conditions 8 and 10 of SMA Permit No. e9 [ 345, Condition H of Ordinance No. 96-8, and Condition K of Ordinance No. 96-7, and ( subject to the terms and conditions as set forth in this Agreement. h. COUNTY. "COUNTY" shall mean the County of Hawaii, municipal orporation, and where applicable, the appropriate departments and agencies but does not iclude the County Council. I. COUNTY COUNCIL. "County Council" shall mean the County of Hawaii unty Council. j.. DEVELOPER. "Developer" shall mean a person, corporation, Lnization, partnership, association, or other legal entity constructing, erecting, enlarging, ing, or engaging in any development activity. A00469 8 Exhibit D k. DEVELOPMENT AGREEMENT CODE. "Development Agreement Code" shall mean Ordinance No. 93-37, which ordinance was passed into law on April 27, 1993 (now HCC chapter 30). 1. DEVELOPMENT AGREEMENT RULES. "Development Agreement Rules" shall mean County of Hawaii Office of the Mayor Rule 1 regarding Development Agreements, approved by the Mayor on May 16, 1995 and filed in the Office of the County Clerk on May 18, 1995. m. DEVELOPMENT AGREEMENT STATUTE. "Development Agreement Statute" shall mean HRS sections 46-121 through 46-132. n. DIRECTOR. "Director" shall mean the Director of the Planning Department of the County of Hawaii. o. ENACTING RESOLUTION. "Enacting Resolution" shall mean Resolution No. approving this Agreement, adopted by the County Council on , 1998, a copy of which is attached hereto as Exhibit "I" and incorporated herein by this reference. p. EXACTION. "Exaction" shall mean any and all exactions; fair share contributions, impact or in-lieu fees or payments; dedication or reservation requirements; obligations for on- or off-site improvements or construction requirements for public facilities or infrastructure; or services called for in connection with the development or construction of the Project pursuant to the Land Use Regulations and Approvals. q. GOVERNMENTAL ENTITY OR AGENCY. "Governmental entity or tt agency" shall mean and include, without limitation, the legislative, administrative and executive branches of the local, state and federal governments. A004 9 Exhibit D r. HCC. "HCC" shall mean Hawaii County Code, as amended. s. HRS. "HRS" shall mean Hawaii Revised Statutes, as amended. t. IMPACT FEE ORDINANCE. "Impact Fee Ordinance" shall mean a Unified Impact Fees Ordinance or similar ordinance setting forth criteria for the imposition of the exactions or the assessment of impact fees. u. LAND USE REGULATIONS. "Land Use Regulations" shall mean any and all State and County laws, ordinances, resolutions, rules and policies governing the permitted uses of the Property, including, without limitation, uses, density, design, height, size and building specifications of proposed buildings; construction standards and specifications for roads and utilities, roadway improvements; affordable housing; community benefit assessments; water utilization and all exaction requirements applicable to the development of the Property; made applicable and in force as of the date of this Agreement. v. LAND OWNER. "Land Owner" shall mean the equitable or legal holder of interest in real property or the lessee holding under a recorded lease. L ,. W. LAWS. "Laws" shall mean the laws of the State, the Constitution of the United States, the Constitution of the State, any federal, state or local codes, statutes, or executive mandates in any court decision, ordinances, or charter provisions or administrative rules and regulations of any applicable governmental entity or agency. X. LENDER. "Lender" shall mean any financial institution or entity providing funds for the Project, including but not limited to banks, savings and loans, investors and partners. Y. MAYOR. "Mayor" shall mean the Mayor of the COUNTY. A00471 10 Exhibit D z. OFFICE OF THE MAYOR. "Office of the Mayor" shall mean the Mayor of the COUNTY and the managing director. aa. OCEANSIDE. "OCEANSIDE" shall mean 1250 OCEANSIDE PARTNERS, a Hawaii limited partnership, dba OCEANSIDE 1250, whose principal place of business and mailing address is 74-5620A Palani Road, Suite 200, Kailua-Kona, Hawaii 96740, its successors and assigns. ab. PERSON. "Person" shall mean any individual, group, partnership, firm, association, corporation, trust, governmental official, administrative body, tribunal or any form of business or legal entity. ac. PLANNING COMMISSION. "Planning Commission" shall mean the Planning Commission of the COUNTY. ad. PLANNING DEPARTMENT. "Planning Department" shall mean the Planning Department of the COUNTY. ae. PROJECT. "Project" shall mean that agricultural lot community and its various components, also including but not limited to the lodge, golf course, golf clubhouse, and the coastline park, and more fully described and shown in Exhibit "J" attached hereto and incorporated herein by reference. Project shall not include the Bypass Highway. af. PROPERTY. "Property" shall mean any and all conservation lands and areas which are the lands under the Change of Zone Approvals: (1) accepted by the County Council on June 15, 1994 as Bill 182, Draft 6, signed into law by the Mayor on June 28, 1994 as Ordinance No. 94-73 attached hereto as Exhibit "S", and amended and superseded by Bill 181, Draft 6, accepted by the County Council on January 3, 1996, and signed into law by the Mayor on January 15, 1996 as Ordinance No. 96-8 attached hereto as Exhibit "B"; and (2) Y 11 E hint accepted by the County Council on January 3, 1996 as Bill 158, Draft 5, and signed into law by the Mayor on January 15, 1996 as Ordinance No. 96-7 attached hereto as Exhibit "C"; that is, those lands which include the 711.2 acres of land (more or less) located on and in the Island and County of Hawaii, identified as Tax Map Key No. 7-9-12: 03, and the 580.63 acres of land (more or less) located on and in the Island and County of Hawaii and identified as Tax Map Key No. 8-1-04: 03 (portion), both of which OCEANSIDE owns in fee simple; and 260.8 acres of land (more or less) located on and in the Island and County of Hawaii, identified as Tax Map Key Nos. 7-9-12: 04 and 7-9-12: 11, and more fully described and shown in Exhibit "K" attached hereto and incorporated herein by this reference, which OCEANSIDE leases from Ackerman Ranch under the development lease dated July 28, 1989, a short form of which is attached hereto as Exhibit "L", and incorporated herein by this reference. ag. PUBLIC ACCESS PLAN. "Public Access Plan", also known as the "Public Shoreline Access Plan", shall mean that plan, developed in consultation with community groups and submitted to and to be approved by the Director, as required by the COUNTY pursuant to Condition 8 of SMA Permit No. 345, Condition H of Ordinance No. 96-8, and Condition K of Ordinance No. 96-7, and subject to the terms and conditions as set forth in this Agreement. ah. PUBLIC HEARING. "Public Hearing" shall mean the public hearing held for purposes of receiving public comments regarding the draft of this Agreement as required pursuant to Rule 1-6(d) of the Development Agreement Rules. ai. RIGHT-OF-WAY. "Right-of-Way" shall mean the route required for construction of the Bypass Highway. 1\ 00473 12 Exhibit D aj. SEGMENT(s). "Segment(s)" shall mean that portion of Right(s)-of-Way falling within a parcel or parcels of land owned by Seller(s). ak. SMALL-LOT SUBDIVISION. "Small-lot Subdivision" shall mean the subdivision by OCEANSIDE of the Property into lots less than twenty (20) acres in size. al. STATE. "State" shall mean the State of Hawaii. am. TERM. "Term" shall mean the term of this Agreement as determined in Paragraph (3), herein. an. UNrr OF CREDrr. "Unit of Credit" shall mean the present value of past or future payments or contributions, including, but not limited to the dedication of land or construction of roadway improvements toward the cost of existing or future public facility capital improvements being issued in lieu of payment for Segment(s) of the Right-of-Way. One (1) Unit of Credit shall be issued for each $3,101.68 value of land contributed toward the Bypass [ Highway. The value of the unit of credit shall be equivalent to the amount of roadway fair share contribution or road impact fee required to be paid for each dwelling or lodge unit at the time of redemption. The recipient of a Unit of Credit may redeem the Unit of Credit toward any roadway fair share contribution or toward any roadway impact fee should the COUNTY adopt such an impact fee ordinance. ao. ZONING CODE. "Zoning Code" shall mean HCC chapter 25 as it exists as of the date of this Agreement. ap. OTHER DE1 iNmONs. Unless otherwise provided herein, other words and terms shall have the meaning set forth in the Zoning Code. To the extent that the definitions in the Zoning Code conflict with the definitions contained in this Agreement, the definitions in this L - Agreement shall be controlling. 13 Exhibit D 3. EFFECTIVE DATE; TERM. The Term of this Agreement shall commence on the effective date of the Enacting Resolution and shall terminate on [MONTH, DAY, YEAR1, [ [30 years from date of Enacting Resolution] unless sooner terminated: a. By agreement of the parties to this Agreement that the parties have satisfied all of the terms and conditions of this Agreement, as further evidenced by a resolution of the County Council pursuant to Paragraph (50), herein; provided that, OCEANSIDE has been reimbursed for the construction costs it incurred for the Bypass Highway pursuant to Paragraph (15); b. As a result of a material breach of OCEANSIDE pursuant to Paragraph (25), herein; or c. By cancellation of this Agreement pursuant to Paragraph (27), herein; or unless subsequently extended by mutual agreement of the COUNTY and OCEANSIDE; or d. By reimbursement of construction costs for the Bypass Highway paid to J {{ OCEANSIDE pursuant to Paragraph (15), herein; provided, however, that the parties to this Agreement have agreed that both parties have satisfied all of the terms and conditions of this Agreement as further evidenced by a resolution of the County Council pursuant to Paragraph (48), herein. 4. AFFECTED LAND. The Property that is the land subject to this Agreement and the Right-of-Way for the Bypass Highway. L-- 5. PERNIITrED USES OF THE PROPERTY. Permitted uses of the Property shall be all uses permitted under the Land Use Regulations and Approvals, including, without limitation, the permitted uses in Chapter 205, HRS, the Zoning Code section 25-5-72, and all supplemental uses allowed under Zoning Code sections 25-4-1 through 25-4-14. A 00475 14 Exhibit D 6. DENSITY OF USE. With the exception of that use described under Zoning Code section 25-4-9, one (1) dwelling unit per building site is permitted on the Property pursuant to Zoning Code section 25-5-72(a)(9). 7. MAXIMUM HEIGHT OF PROPOSED BUILDINGS. The height of the buildings proposed for the Property shall be limited to the maximum height restrictions contained in the Zoning Code. 8. MAXIMUM SIZE OF PROPOSED BUILDINGS. The size of buildings proposed for the Property shall be limited tothe maximum size restrictions, if any, contained in the Zoning Code. 9. BENEFITS. The COUNTY acknowledges that OCEANSIDE is providing the benefits to the County and/or the Community. 10. ACQUISITION AND DEDICATION OF LAND FOR BYPASS HIGHWAY. a. The Bypass Highway has been determined by the COUNTY as providing a regional public purpose and will therefore benefit the COUNTY. OCEANSIDE shall be deemed to have satisfied the requirements of Condition M(2) of Ordinance 96-7 and Condition L(2) of Ordinance 96-8, if and when it has: (I) acquired all Segments of Right-of-way, or (ii) acquired one or more Segment(s) of Right-of-Way and the remaining Segments have been requested by OCEANSIDE for the COUNTY to condemn. b. OCEANSIDE shall attempt to negotiate a purchase price with any and all Sellers. Should OCEANSIDE and any Seller be unable to negotiate a mutually agreeable purchase price, then OCEANSIDE shall provide to Seller a list containing no less than three (3) and no more than five (5) qualified Appraisers to appraise the value of the Seller's Segment(s) of the Right-of-Way. From the list of Appraisers, the Seller shall select one (1) Appraiser to assess the value of the Segment(s). OCEANSIDE may offer to purchase the fee simple interest in the A0047 i 15 Exhibit D Segment(s) from Seller for a price at or near the appraisal value as determined by the Appraiser. Should OCEANSIDE and Seller be unable to select an Appraiser or if Seller & OCEANSIDE cannot decide on a price recommended by mutually selected Appraiser, then upon written request to the Mayor, the COUNTY shall be required to use its condemnation powers to acquire the Segment(s) from the Seller pursuant to Paragraph (11). c. Notwithstanding Paragraph (10.b), if Seller fails to participate in negotiations with OCEANSIDE for the purchase of Segment(s) of the Right-of-Way from Seller despite OCEANSIDE's good faith attempts to negotiate, then OCEANSIDE may, in its sole discretion, submit a letter to the Mayor to have the COUNTY utilize its condemnation powers. Upon receipt of the written request, the COUNTY shall be required to use its condemnation powers to acquire the Segment(s) from the Seller pursuant to Paragraph (11). 11. CONDEMNATION OF LAND FOR BYPASS HIGHWAY. Should Seller fail toartici to P Pa 1 in negotiations with OCEANSIDE over the purchase of Segment(s) of the Right-of-Way from Seller, or should OCEANSIDE and Seller be unable to agree, during their negotiations, to the purchase of the Segment(s) because of their failure to agree upon an Appraiser or on the purchase price of the Segment(s) or on the terms of the purchase, the condemnation powers of the ( COUNTY shall be required for the acquisition of the Segment(s). a. Upon OCEANSIDE's tender of a requirement of condemnation by letter to the COUNTY, the COUNTY shall within thirty (30) days begin to immediatelyand expeditiously P� Y exercise the same pursuant to HRS Chapter 101. OCEANSIDE's tender of such requirement of condemnation to the COUNTY shall constitute a "formal initiation of condemnation action" as the term is used in Condition L(2) of Ordinance 96-8 and Condition M(2) of Ordinance 96-7 and shall A00477 16 Exhibit D relieve OCEANSIDE of all further liability or obligation to purchase Segment(s) of the Right-of-Way directly from such Seller. b. The COUNTY shall submit to OCEANSIDE a written request for payment ( of any and all reasonable costs and expenses incurred by the COUNTY for the acquisition of the condemned land in conjunction with the COUNTY'S exercise of its condemnation powers when OCEANSIDE has determined in its sole and absolute discretion that there is a need for possession or in the event that a Court orders payment for the acquired land. Within forty-five (45) days of written notice from the COUNTY, OCEANSIDE shall reimburse the COUNTY for any and all reasonable costs and expenses incurred by the COUNTY for the acquisition of the condemned land in conjunction with the COUNTY's exercise of its condemnation powers. OCEANSIDE shall not be responsible to reimburse the COUNTY for any and all costs relating to the salary of County personnel and administration and overhead, including but not limited to independent contractors jand legal counsel, and any interest payments incurred by COUNTY as a result of COUNTY's failure to pay compensation to Seller within thirty (30) days of final judgment in the condemnation action. The written notice described herein from the COUNTY to OCEANSIDE shall contain a detailed verifiable accountingof anyand all such costs and expenses. Pe c. Notwithstanding Paragraph (11.b), OCEANSIDE shall not be obligated to reimburse the COUNTY for any costs it incurred for the condemned land if such costs exceed the appraised value of the Segment(s) of the Right(s)-of-Way as determined by an Appraiser selected by OCEANSIDE ("Appraised Value"). OCEANSIDE may waive this requirement if the COUNTY informs OCEANSIDE of the cost of the condemned land prior to having incurred such costs and provided that OCEANSIDE approved such cost in writing. The COUNTY agrees that OCEANSIDE shall have the discretion and the right to withhold the difference between the cost A00478 17 Exhibit D of the condemned land as determined by a court of law and the Appraised Value if OCEANSIDE's approval was not first received or for those services that OCEANSIDE deems unreasonable, unnecessary or excessive. In such a case, OCEANSIDE shall provide to the COUNTY a written notice of OCEANSIDE's objections within thirty (30) calendar days from the receipt of COUNTY's written request for payment. d. Should a dispute arise over the amount of monies owed by OCEANSIDE to the COUNTY, then both parties agree to first pursue settlement of the dispute by arbitration pursuant to HRS Chapter.658. OCEANSIDE shall submit to the COUNTY a list of arbitrators to hear the dispute. The COUNTY has ten (10) calendar days to select one (1) arbitrator from OCEANSIDE's list. If the COUNTY fails to select an arbitrator, then OCEANSIDE may select an arbitrator to hear the dispute. 12. DONATION OF RIGHT-OF-WAY. Notwithstanding anything herein to the contrary, should a person donate the Segment(s) of the Right-of-Way to OCEANSIDE for no consideration, the COUNTY shall: a. Grant the person who contribute their land towards the Bypass Highway 1 , units of credit which maybe used bytheperson to off-set future roadwayfair share assessment or impact fee requirements. Each unit of credit shall off-set the roadway fair share assessment or impact fee requirement for one (1) dwelling or lodge unit. The amount of credits shall be the total value of the Segment(s) for Right-of-Way o divided by the per lot fair share assessment or [ impact fee requirement to mitigate road impacts for each $3,101.68 value of land contributed. The total value of the Segment(s) for Right-of-Way shall be based on the appraised value of the Segment(s) at the time the person dedicates and/or donates the Segment(s) to OCEANSIDE as determined by the Appraiser selected using the procedures outlined in subparagraph (10.b). 18 APAthitA) b. The COUNTY shall grant a density credit to Persons whose lands are donated for the Segment(s) of the Right-of-Way. The density credit is equal to the area of land that is utilized. The density credit shall be added to the Person's remaining property at the time the Person obtains land use approvals from the COUNTY. The density credit allows the Person to develop the total number of units that would be permitted under the applicable zoning at the time the Person obtains land use approvals as if the person had not contributed land for the Right- of-Way (( ' ' c. The COUNTY shall impose no additional fair share assessments or impact fee requirements on Persons whose lands have been donated and who develop their lands in conformance with existing zoning. ( 13. CONSTRUCTION OF THE BYPASS HIGHWAY. The Bypass Highway shall consist of two (2) lanes with sufficient Right-of-Way for a total of four (4) lanes. The Bypass Highway shall be constructed to standards set forth by the Department of Public Works with such modifications as may be deemed necessary by the Department of Public Works; provided, however, that the expansion of the Bypass Highway from two (2) to four (4) lanes shall not be the responsibility of OCEANSIDE. a. OCEANSIDE shall obtain final approval from the County Department of Public Works for any and all necessary construction plans for the Bypass Highway. OCEANSIDE shall construct the Bypass Highway to the standards set forth in ExhibitM" by the Department [ of Public Works for Alii Highway with such modifications as may be deemed necessary by the County Department of Public Works and by OCEANSIDE. As required by the chief engineer of the County Department of Public Works, OCEANSIDE shall provide a landscape buffer along A00460 19 Exhibit D highway sections where the highway is within five hundred (500) feet of dwellings existing as of January 1, 1998. b. Prior to the issuance of the first final Small-lot Subdivision approval for any portion of the Property, OCEANSIDE shall: (1) Post a bond in favor of the COUNTY to assure that the infrastructure improvements for the Bypass Highway and for the channelization and signalization of the Mamalahoa Highway-Haleki'i Street intersection will be constructed; (2) Determine the final Right-of-Way for the alignment of the entire Bypass Highway, including the intersection areas. OCEANSIDE shall provide the Director with a metes and bounds description of each Segment of the Right-of-Way involved and evidence of ownership or control as deemed necessary by the Director. In lieu of OCEANSIDE obtaining or acquiring ownership or control of any segment of the Bypass Highway, the requirement shall be deemed fulfilled upon the COUNTY's formal initiation of condemnation action(s) pursuant to Paragraph (11) for such Segments. The COUNTY shall issue a letter attached as Exhibit "N" that acknowledges OCEANSIDE's satisfaction of the requirement to obtain or acquire ownership or control of the Right-of-Way for the entire length of the Bypass Highway, including those portions that the County has initiated condemnation proceedings and/or has ownership or control over, which removes the requirement from OCEANSIDE. (3) Provide a bond for relevant phases of the extension of Haleki'i Street, through the subject property as generally reflected in Exhibit "0", which phasing of improvements shall be approved by the COUNTY Department of Public Works. c. Prior to occupancy of any dwelling unit within the Property or prior to the issuance of an occupancy permit for the lodge, whichever occurs first, OCEANSIDE shall: A00481 20 Exhibit D (1) Complete construction of the roadway section from Keauhou to the makai extension of Haleki'i Street; and (2) Install a barricade or breakaway gate meeting with the requirements of the COUNTY Department of Public Works if, before the completion and opening of the entire Bypass Highway, a portion of said bypass is completed and opened, and said portion provides a connection to Haleki'i Street; d. In any event from the time construction commences, the entire Bypass Highway shall be completed within five (5) years provided that those certain circumstances as articulated in Paragraph (39) do not exist. 14. DEDICATION OF BYPASS HIGHWAY. The Bypass Highway shall be dedicated to the COUNTY in phases, if any, upon completion and the COUNTY shall accept said dedication within sixty (60) calendar days; provided that the Bypass Highway, as constructed, complies with plans and specifications for said highway as approved by the County. Following dedication of the ( Bypass Highway to the COUNTY, the COUNTY shall assume all responsibility and costs for operation, maintenance, repair or reconstruction of the Bypass Highway. 15. REIMBURSEMENT OF CONSTRUCTION COSTS FOR THE BYPASS HIGHWAY. a. Responsibility of Developer. OCEANSIDE shall be responsible for all costs associated with the design, land acquisition, construction of the Bypass Highway, including, without limitation, the costs associated with obtaining any necessary Approvals associated with the same ("Total Cost"); provided that, nothing herein shall be construed as preventing OCEANSIDE from seeking reimbursement for such costs and the total amount of reimbursement received by OCEANSIDE shall not exceed the difference between the Total Cost of the Bypass Highway and the "Project Impact Cost", as described in further detail in Paragraph (15.a.1). A00482 � l 21 Exhibit D (1) Based on a development constituting seven hundred thirty (730) lots and eighty (80) lodge units ("Project Unit Count"), the Project constitutes approximately thirty-eight(38) percent of the total capacity of the Bypass Highway based upon a Level of Service "D" ("Project Impact"). Should OCEANSIDE develop less or more than the Project Unit Count, then the percentage of traffic attributable to the Project shall be adjusted accordingly. The Total Cost of the Bypass Highway multiplied by the Project Impact shall determine the Project Impact Cost. For example, if the Total Cost of the Bypass Highway is $1.0 million and the Project Impact is thirty-eight (38%) percent, the Project Impact Cost is $380,000.00. In such a case, OCEANSIDE shall then be eligible to receive no more than $620,000 of reimbursement ($1.0 million minus $380,000). (2) The remaining balance of the Total Cost of the Bypass Highway after deducting OCEANSIDE's and Kealakekua Development Corporation's share shall be reimbursed to OCEANSIDE with funds from income sources identified in Paragraph (15.c.1) for costs incurred by OCEANSIDE in the land acquisition, design, planning, construction, development and approval of the Bypass Highway. b. Adoption of a Impact Fee Ordinance. Should the County Council adopt a Impact Fee Ordinance, OCEANSIDE shall receive one (1) unit of credit for every $3,101.68 it has spent toward the construction of the Bypass Highway and the Haleki'i Street intersection improvements. The credits may be applied toward the requirements of an Impact Fee Ordinance. c. Funds for Reimbursement. During the course of this Agreement, if the COUNTY approves new rezonings in the vicinity of Mamalahoa Highway, then the COUNTY shall assess those new developments a "Fair Share" contribution, or similar fee, to address the regional impacts of their development on road facilities. In the event that the COUNTY collects A00483 22 Exhibit D funds for such "Fair Share" contributions, or similar fees, as may be allowed by the rezoning ordinances, and as identified in Paragraphs (15.c.1. and 15.c.2. herein) from developers and landowners whom the County has determined as benefitting from the Bypass Highway, the COUNTY shall reimburse OCEANSIDE from such funds as they are collected. (1) Funds to reimburse OCEANSIDE shall be from, but not limited to, [ the following sources: ( (a) "Fair Share" contributions paid to the COUNTY to address potential regional impacts of their development on road facilities; (b) Upon the adoption of a Impact Fee Ordinance that assesses or imposes an impact fee either for the COUNTY as a whole or for the region extending from Keauhou to South Point, that portion of the impact fee necessary to address potential regional impacts on road facilities; r (c) Any other monetary contribution paid to the COUNTY from i developers or land owners, whom the COUNTY determines as benefiting from the Bypass Highway, to address potential regional impacts of such developers or land owners development on road facilities; (2) In addition to the reimbursement funds identified in Paragraph (15.c.1), OCEANSIDE shall be entitled to "Fair Share" contributions in the amount of $3.6. million, as may be adjusted from time to time, paid to the COUNTY by Kealakekua Development Corporation or its successors to address potential regional impacts of Kealakekua Development Corporation's project, less $1.3 million representing contributions toward Mamalahoa Highway Improvements and improvements to Greenwell Park as required by Conditions K and N(2), respectively, of Ordinance 95-70, as may be amended. A00484 23 Exhibit D I_ . (3) Should the COUNTY Council adopt an Impact Fee Ordinance, developers and land owners whom the COUNTY determined as benefitting from the Bypass Highway shall receive Highway Credits to be applied toward the requirements of a Impact Fee Ordinance. (4) So long as the COUNTY shall assess those new rezonings in the vicinity of Mamalahoa Highway a fair share contribution, or if adopted, an impact fee, to address the regional impacts of their developments on road facilities, OCEANSIDE acknowledges and understands that should any funds or options identified in the preceding sections 15.b and c. fail to materialize or fail to meet the remainder of the total cost of the Bypass Highway, the COUNTY Y shall not be held responsible for any reimbursements. d. "Benefit" to Other Developments. The COUNTY finds that certain geographic portions of Mamalahoa Highway are currently congested and that any new 411 development is severely restricted because of traffic considerations. Developments within the geographic region extending from Keauhou to the north and to Hawaiian Ocean View Estates to the south will benefit in varying degrees from the construction of the Bypass Highway. This benefit is based on the congestion relief provided by the Bypass Highway to Mamalahoa Highway/Kuakini Highway as well as by providing direct access to the land along the Bypass Highway corridor. Accordingly, the amount of the "benefit" of the bypass Highway will vary by geographic region. (1) Amount of Reimbursement to OCEANSIDE. The amount of the COUNTY's reimbursement to OCEANSIDE shall be based on a percentage of those income sources identified in subparagraph (15.c) which are collected or assessed by the COUNTY from other developers and land owners whom the COUNTY has determined as benefitting from the A00485 24 Exhibit D Bypass Highway. The percentage paid shall be in accordance with the geographic areas as described below, and as more particularly shown on Exhibit "P". Area Description Percentage 1. Keauhou 25% 2. Honalo-Captain Cook- Existing Mamalahoa Hwy Corridor 80% 3. Honalo-Captain Cook - Mauka Area 100% 4. Honalo-Captain Cook - Makai Area 100% 5. Captain Cook to Milolii 65% (2) Collection of Funds. Any Reimbursement Funds received by COUNTY shall be held in trust for OCEANSIDE and promptly remitted to OCEANSIDE bythe P P Y COUNTY no later than ninety (90) days following the COUNTY's receipt of such remittance. e. Private Agreements. The provisions of this Paragraph shall not preclude OCEANSIDE from entering into private agreements with the State and/or such other developers or landowners to allocate the payment of Reimbursement Funds related to the Bypass Highway directly to OCEANSIDE. OCEANSIDE shall submit receipts of such payments to the COUNTY. f. Reimbursement Agreement. The provisions for reimbursement contained in this Agreement shall constitute an agreement for reimbursement between COUNTY and OCEANSIDE, which agreement shall satisfy the mandates of Condition L of Ordinance 96-8, and Condition M of Ordinance 96-7. 16. ROADWAY SmB-Ours. OCEANSIDE shall provide roadway stub-outs, generally [ shown in Exhibit "Q", to provide future connections between the Property and its adjacent north and south boundaries. Such roadway stub-outs shall be constructed in phases and in conjunction with the completion of subdivision improvements on adjacent Property. A00486 25 Exhibit D 17. PUBLIC ACCESS PLAN. OCEANSIDE shall develop, in consultation with community groups, a final comprehensive Public Access Plan. The Public Access Plan shall be submitted to and approved by the Director prior to final subdivision approval of the first small-lot subdivision. a. The final comprehensive Public Access Plan shall be developed Ped in consultation with the Director and the Hawaii State Department of Land and Natural Resources ("DLNR") and shall include mauka-makai and lateral shoreline accesses, parking area(s), signage, emergency response considerations, restrictions on use (if any), provision of recreational and restroom facilities at appropriate locations, and related improvements. b. In accordance with Ordinance 96-7 and 96-8, the Public Access Plan shall also integrate at the trail heads, shoreline access parks and the historical park, any public accesswa s to the interpretive trail system(s) and to the historical and archaeological sites. Such YO rP Y g a Public Access Plan shall be approved by the Director, in consultation with the DLNR. In developing the Public Access Plan, OCEANSIDE should attempt to protect both land and ocean resources and natural conditions, as reasonably practicable. 18. COASTLINE PARK. OCEANSIDE shall develop the portion of its lands in the Property located in the Conservation District for use as a Coastline Park for the benefit of the public pursuant to the Approvals. a. Construction and Development of the Coastline Park. OCEANSIDE [ shall be responsible for any and all costs associated with the design, operation and maintenance, construction and development of the Coastline Park, including, without limitation, the costs l_. associated with obtaining any necessary Approvals associated with the same. Notwithstanding the (_. foregoing, OCEANSIDE may transfer it obligations, in whole or in part, under this paragraph to 26 �xhi b D I__ the Project's "Homeowner Association" or other similar entity formed for the purpose of serving as the governing body for all the members and owners of the Project for the protection, [ improvement, alteration, maintenance, repair, replacement, administration and operation of the common areas, for the assessment of expenses, for the payment of losses, and for other matters as may be provided for in the Project's Declaration, the Homeowner Association's Articles of Incorporation, the Homeowner Association's By-laws, or the Project's Design Guidelines, The Declaration shall contain language providing for the perpetuity of the Coastline Park and its availability to the public for use in accordance with certain rules and guidelines that will be established in the public access plan as required under SMA Permit No. 345 to be submitted by ( OCEANSIDE to the Director for approval. Additionally, if requested by OCEANSIDE or the Homeowner Association, and if approved by the COUNTY, which approval shall not be unreasonably withheld, said Developer or the Homeowner Association may assign its responsibilities, in whole or in part, under this paragraph to a foundation or other entity to assume the duties and obligations stated herein. b. The construction and development of the Coastline Park shall be completed It in phases roughly proportional to the phases of the Project's development as may be approved by the Director pursuant to the Approvals and shall be subject to the obtaining of all necessary liscretionary permits (e.g. Conservation District Use Approval, Special Management Area Use rmit, etc.). (1) An area comprising twenty five percent (25%) of the total Coastline rk as shown on Exhibit "R" attached hereto and incorporated herein by this reference, shall be 'eloped and improved by OCEANSIDE in phases within five (5) years from the date final [ dl-lot Subdivision Approval is obtained on any portion of the Property. 27 Exhibit D (2) The first phase of the Coastline Park shall be opened to the public within thirty (30) days following the opening of the golf course. (3) In accordance with Ordinance 96-7 and 96-8, upon opening the first phase of the park area, OCEANSIDE shall provide: (a) a minimum of twenty-five (25) public parking stalls, with separate parking stalls for residents and their guests, and separate parking stalls for the Coastline Park's employees. As may be imposed in permits necessary to complete the Coastline Park's ( improvements, the parking stalls shall, at OCEANSIDE's discretion, either be within the Coastline Park and/or within OCEANSIDE's adjacent lands. The number of parking stalls shall be increased commensurately with the approval of additional park phases in accordance with the public access plan; (b) signage and provisions for public access for night fishing and marine food gathering purposes subject to restrictions which limit said uses to non-commercial and ( recreation uses only; and (c) other restrictions which provide for the health and safety of the public. c. In accordance with SMA Permit No. 345, upon the approval of the final comprehensive public access plan, draft covenants which detail the rights, obligations and privileges of the public, the County of Hawaii and OCEANSIDE, its successors or assigns shall [ be submitted to the Director for approval. The approved covenants shall be recorded in the manner required pursuant to SMA Permit No. 345. d. Prior to receiving final approval of the first Small-lot Subdivision, OCEANSIDE shall convey to COUNTY a perpetual easement for public access over and A00489 28 Exhibit D recreational use of the Coastline Park area pursuant to such restrictions as may be established by OCEANSIDE with the approval of the Director, to promote public health and safety and the general security of the Coastline Park for residents and guests of the Project, to protect the area's natural condition, and to minimize any liability to OCEANSIDE, pursuant to HRS Chapter 520. e. OCEANSIDE's fee simple interest in the land area of the Coastline Park shall be retained by OCEANSIDE, who shall own and manage the Coastline Park; provided that OCEANSIDE, in its sole discretion, may transfer management responsibilities for the Coastline Park to any homeowners' association or other entity which may be formed for the Project subject to the aforementioned covenants. 19. GuEsr HOUSES. Nothing herein shall be construed as prohibiting the construction of"guest houses" within the Project as the term is defined in Zoning Code section 25-1-5(55), as allowed under Zoning Code section 25-4-9, and pursuant to Chapter 205-6, HRS. i 20. GENERAL DEVELOPMENT OF THE PROJECT. OCEANSIDE shall have the right to develop the Project, the Bypass Highway and the Coastline Park in accordance with the terms and conditions of this Agreement and the Approvals, and the parties shall have the right to enforce the ( provisions of this Agreement. The parties hereto acknowledge that this Agreement is intended to implement the intent of the parties and that OCEANSIDE shall have the right to develop the Project, the Bypass Highway and the Coastline Park pursuant to the Land Use Regulations and YP g Y Approvals, subject to its adherence to and performance of all terms and conditions of this Agreement. In the event that a question arises regarding OCEANSIDE's and the COUNTY's responsibilities or their intent, the parties shall look toward this Agreement to clarify such issues. A004j0 f 29 Exhibit D b. The COUNTY shall accept and process expeditiously any application(s) submitted under this Paragraph or otherwise required under the terms of this Agreement within such time frames as specified within the Land Use Regulations; provided, however, that if the Land Use Regulations do not contain a specific time frame for processing such application(s), the application(s) shall be processed within a reasonable amount of time from the date of receipt of a complete application(s) by the COUNTY; and provided further that if, for any reason, the ( application(s) as submitted by OCEANSIDE is/are not complete, the COUNTY shall promptly request from OCEANSIDE any information or materialsnecessary to complete the application(s). 23. CONFORMANCE WITH THE COUNTY GENERAL PLAN AND COMMUNITY DEVELOPMENT PLANS. By virtue of the County Council's approval of the Enacting Resolution, the County Council finds that as of the date of this Agreement, this Agreement is consistent with the COUNTY's General Plan as amended, and any applicable community development plans adopted by the County Council and in effect as of the date of this Agreement; provided, however, that in the event of any inconsistency between the County General Plan and any applicable community development plan by ordinance, the County General Plan shall prevail. 24. ANNUAL REVIEW. On or before January 14th of each and every year following the execution of this Agreement, OCEANSIDE shall submit an annual report of its compliance with the terms and conditions of this Agreement to the Planning Department, or such agency as the COUNTY designates in writing to OCEANSIDE; provided further, that the Planning Department ( or such designated agency shall review such report for adequacy and accuracy and shall forward a copy of the annual report together with its findings and any other comments to the Mayor, County Council, OCEANSIDE and any other parties to this Agreement within sixty (60) days. ( 25. MATERIAL BREACH BY OCEANSIDE. A00491 31 Exhibit D a. Within thirty (30) days after the Planning Department or the Office of the Mayor determines on the basis of the periodic report that OCEANSIDE has committed a material breach of the terms or conditions of this Agreement, the Planning Department or the Office of the Mayor, as applicable, shall inform OCEANSIDE in writing of the same, setting forth with reasonable particularity the nature of the breach and any and all evidence supporting the finding and determination; provided, however, that OCEANSIDE shall be given a reasonable time period in which to cure any such material breach. b. OCEANSIDE shall have one hundred eighty (180) days to cure the material breach. If OCEANSIDE fails to cure the material breach within that time, the COUNTY may terminate or modify the terms of this Agreement in accordance with HCC section 30-6; provided, however, that the Office of the Mayor shall have first given the OCEANSIDE the opportunity: (1) To rebut the findingand determination bythe Office of the Mayor Y of the existence of the material breach; or (2) To consent to amend this Agreement according to such terms as the Office of the Mayor may elect to propose in order to cure the material breach; provided, however, l that such amendments must be accepted and approved by the County Council pursuant to Paragraph (27), herein. c. Upon the mutual agreement of the parties to the Agreement, this Agreement may be terminated by County Council resolution if: (1) OCEANSIDE does not agree to such amendments proposed by the Office of the Mayor or as subsequently modified by the County Council pursuant to Paragraph (27), herein; or A00492 32 Exhibit D (2) The County Council reasonably rejects the amendments proposed by the Office of the Mayor and the County Council states its reasons, in writing, for rejecting the proposed amendments. d. Should the County Council terminate this Agreement, OCEANSIDE will have the right to appeal such a decision to a court of law, in which case the standard of review shall be whether the County Council acted reasonably in its termination of this Agreement. The termination of this Agreement pursuant to this Paragraph shall not preclude any rights or remedies that would have existed had this Agreement not been entered into. 26. EXTENSION OF TIME. a. Pursuant to Ordinances 96-7, 96-8 and 97-36, upon written request of OCEANSIDE to the Director, any dates of commencement or completion for the Bypass Highway or the Coastline Park may be extended by the Director at OCEANSIDE's request. b. Notwithstanding any extension limitations set forth herein, upon written request by either party for an extension of time in which to complete its obligations hereunder which request is made due to a delay in the performance of any of the obligations of either party, a reasonable extension of the commencement, completion, or termination dates shall be granted by the other party for the performance of the terms of this Agreement; provided, however, that the delay in performance must be due to an unforeseeable cause or causes beyond the control and without the fault or negligence of either party, including, without limitation, acts of God, acts of [ the public enemy, fires, floods, epidemics, quarantine restrictions, strikes or walkouts, freight embargoes, or unusually severe weather. c. Nothing in this Agreement shall be construed to preclude the parties hereto from further ganycommencement, completion or termination date hereunder bymutual extending P A00493 33 Exhibit D agreement, or from entering into subsequent agreements subject to the approval of the County Council. 27. AMENDMENT OR CANCELLATION OF AGREEMENT. This Agreement may be amended or canceled, in whole or in part, by mutual consent of the parties to this Agreement, or their successors in interest, as further evidenced by County Council resolution; provided that if the County Council determines that the proposed amendment would substantially alter the original terms of this Agreement, a public hearing on the amendment shall be held by the County Council before it consents to the proposed amendment. Non-substantive or technical amendments which i affect only procedural requirements under this Agreement or do not materially alter the original terms of this Agreement shall only require the approval of the Office of the Mayor, without action by the County Council; and provided further that cancellation of this Agreement pursuant to this Paragraph shall not preclude any rights or remedies that would have existed had this Agreement [ not been entered into. A 28. DISCRETION TO ENCUMBER. This Agreement shall not prevent or limit OCEANSIDE, in any manner and at OCEANSIDE's sole discretion, from encumbering all or any Portion of the Property, or any improvement on the Property by any mortgage, deed of trust, or other security device securing financing with respect to the Property or any improvements located thereon. 29. OBLIGATION TO MODIFY. The COUNTY acknowledges that any Lenders providing financing under Paragraph (28), herein, may require certain modifications to this { Agreement, and the COUNTY agrees, upon request from time to time, to meet with OCEANSIDE and/or representatives of such lenders to negotiate in good faith any such requirement for modification. The COUNTY shall not unreasonably withhold its consent to any A00494 34 Exhibit D such requested modification, and any such modifications shall be subject to the provisions of Paragraph (27), herein. 30. Errrni.EMENT TO WRITTEN NOTICE OF DEFAULT. The mortgagee of a mortgage or beneficiary of a deed of trust encumbering all or any portion of the Property and their successors and assigns shall, upon written request to the COUNTY, be entitled to receive from the COUNTY written notification of any default by OCEANSIDE of the performance of OCEANSIDE's obligations under this Agreement which has not been cured within such time period as set forth in Paragraph (25), herein. 31. COOPERATION. The COUNTY shall not impede OCEANSIDE in carryingout the transactions contemplated herein and in obtaining all required approvals, authorizations, and clearances. Furthermore, the COUNTY shall cooperate with OCEANSIDE in executing and deliveringin recordable form all documents, instruments, or copies in providing P thereof; P g non-financial and/or non-proprietary information deemed reasonably necessary or useful by the 1 other party or parties; in delivering prompt payment of any monies required to be paid to the other party or parties under this Agreement; and to process, in a timely manner, any and all construction, permit or other applications relating to the Project, the Bypass Highway or the Coastline Park. With regard to any application(s) submitted by OCEANSIDE to any other governmental or quasi-governmental agency having jurisdiction over the Project, the Bypass Highway or the Coastline Park for any and all appropriate Approvals required for the construction [ or development of the Project, the Bypass Highway, or the Coastline Park the COUNTY shall not impede OCEANSIDE in obtaining such Approvals. 32. ASSIGNMENT. OCEANSIDE shall have the right to sell, assign or transfer, in whole or in part, this Agreement, and all of its rights, duties and obligations hereunder, to any l _ 35 entity, subsidiary, or partner of OCEANSIDE at any time during the term of this Agreement upon written notice to the Director. Such a transfer shall be considered a non-substantive or technical amendment that does not alter the material terms of this Agreement and which does not require action by the County Council, nor the approval of the Office of the Mayor. 33. ENFORCEMENT. Unless terminated pursuant to Paragraph (25) or canceled pursuant to Paragraph (27) herein, this Agreement, as amended or modified, shall be enforceable by any party hereto, or its successors in interest or assigns, notwithstanding any change in any applicable law, which alters or amends.,.the.Land Use Regulations or Approvals, the Development Agreement Statute, the Development Agreement Code, or the Development Agreement Rules, that is adopted by the COUNTY or any other party to this Agreement after the date of the Enacting Resolution. 34. WAIVER. The failure of any party to this Agreement to insist upon strict performance of anyof the covenants or conditions herein, or to exercise anyoption herein p a em conferred,or the waiver of a breach, shall not be deemed a waiver of such party's right to demand strict compliance by such other party in the future, nor shall it be deemed a relinquishment or waiver for the future of any rights, covenants, conditions or options under this Agreement. 1 35. GENDER. The terms "COUNTY" and "OCEANSIDE", wherever used herein, or any pronoun used in place thereof, shall mean and include the masculine or feminine or neuter gender, the singular or plural number, jointly and severally, individuals, firms or corporations, and their and each of their respective successors, legal representatives and assigns, according to the context thereof. { 36. No PARTY DEEMED DRAFTER. No party shall be deemed the drafter of this Agreement. If this Agreement is ever construed by a court of law, such court shall not construe �. . any provision thereof against any party as drafter. A 00 4 9 6 36 Exhibit D 37. No PARTNERSHIP. Nothing contained in this Agreement is intended, nor shall be construed to establish an agency relationship, a partnership or a joint venture between the parties hereto. 38. APPLICABLE LAW. This Agreement shall be governed by the laws of the State of Hawaii both as to interpretation and performance. 39. FORCE MAJEURE. In the event that either party shall be delayed or hindered in or prevented from the performance of any duties, obligations or conditions provided for and required under this Agreement by reason of strikes or other disturbances, lockouts, labor troubles, riots, insurrection, war or civil disturbance, fire earthquake, tidal wave, acts of or qGod, the elements, government legislation, regulation or controls, or economic controls, making it impossible to complete any duties, obligations, or conditions provided for and required under this Agreement, then performance of such duty, obligation, or condition shall be excused for theperiod of the g � t e delay and the period for the performance of any such duty, obligation, or condition shall be extended for a period equivalent to the period of such delay. Under no circumstances shall this provision operate or be construed to excuse either party from the payment of any sum required to be paid to the other party. , OCEANSIDE or the COUNTY shall notify the other in writing of any force majeure event upon which OCEANSIDE or the COUNTY intends to rely upon for an extension of the period for the performance of any such duty, obligation, or condition, and shall also notify the other in writing of the date on which any such force majeure event ended. 40. GOOD FAITH. Either party to this Agreement shall perform its duties under this Agreement in good faith. A 0 0 4 9 37 Exhibit D 41. COMPUTATION OF PERIODS. All periods of time referred to in this Agreement shall include all Saturdays, Sundays and state or national holidays; provided, however, that if the date ( or last date to perform any act or give any notice with respect to this Agreement shall fall on a Saturday, Sunday or state or national holiday, such act or notice may be timely performed or given on the next succeeding day which is not a Saturday, Sunday or state or national holiday. 42. SEVERABILITY. If any provision of this Agreement, or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this ( Agreement and the applicationof any provisions thereof to other persons or circumstances shall not be thereby affected. 43. ENTIRE AGREEMENT. This Agreement embodies the entire agreement of the parties hereto and supersedes any other agreements or understandings with respect to the subject matter hereof that may ever have existed between the parties. 44. SECTION AND PARAGRAPH HEADINGS. Section and paragraph headings are inserted ( only for convenience and reference and in no way define, limit, extend or describe the scope of intent of this Agreement, or any provisions thereof. 45. ADMINISTRATIVE Act. The approval of this Agreement shall, under Development gP Agreement Statute HRS section 46-131, be deemed an administrative act of the COUNTY and any and all governmental agencies or entities party to this Agreement. 46. BINDING EFFECT. The terms and conditions of this r A m n gee e t shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to and assigns ( of the parties hereto, and the covenants contained herein shall run with the land. 47. ENTITIES OBLIGATED. Except as provided to the contrary herein, individual lot purchasers or builders, mortgagees or beneficiaries shall not have the obligation or duty under this zipj38 xhibi Agreement to perform the obligations of OCEANSIDE or other affirmative covenants of OCEANSIDE hereunder, or to guarantee such performance. 48. PARTIAL RELEASE. Any terms and restrictions of this Agreement which are ( satisfied as of the annual review shall be released upon request of OCEANSIDE; provided that any such release shall be in recordable form that OCEANSIDE may record in the Office of the Assistant Registrar of the State of Hawaii and/or the State of Hawaii Bureau of Conveyances, as applicable, within twenty (20) days of the execution of such release. 49. COMPLIANCE CERTIFICATE. If, during the annual review conducted pursuant to Paragraph (24), herein, the Planning Department finds compliance by OCEANSIDE with the terms of this Agreement, the Planning Department shall issue a certificate of compliance in recordable form that OCEANSIDE may record in the Office of the Assistant Registrar of the Land Court of the State of Hawaii and/or the State of Hawaii Bureau of Conveyances, as applicable. 50. SATISFACTION. Upon the satisfaction of the terms and conditions of this Agreement, and upon request by the Office of the Mayor and OCEANSIDE, the County Council shall propose and approve a resolution indicating that this Agreement has been satisfied. 51. FINAL RELEASE. The COUNTY agrees that upon written request po of OCEANSIDE and payment of all fees and performance of the obligations of OCEANSIDE under this Agreement with respect to all or any portion of the Property, the COUNTY shall execute and deliver to OCEANSIDE appropriate release(s) of OCEANSIDE from om any and all further obligations under this Agreement in such form and substance necessary to effect such release and to record the same with the Office of the Assistant Registrar of the Land Court of the State of Hawaii and/or the State of Hawaii Bureau of Conveyances, as applicable; provided that any such release shall be recorded within twenty (20) days of its execution. 1_ • 39 Exhibit D 52. ADMINISTRATION OF THIS AGREEMENT. The Planning Department shall be responsible for the overall administration of this Agreement. 53. RECORDATION. The Planning Department, or such other executive agency designated in writing to OCEANSIDE by the Mayor, shall file or record copies of this Agreement and any amendment or modification hereto in the Office of the Assistant Registrar of the Land Court of the State of Hawaii or in the State of Hawaii Bureau of Conveyances, or both, whichever is applicable, within twenty (20) days after the execution of this Agreement, or twenty (20) days after any amendment hereto. 54. COUNTERPARTS. The arties hereto pagreethat this Agreement may be executed in counterparts, each of which shall be deemed an original, and said counterparts shall together constitute one and the same instrument, binding all of the parties hereto, notwithstanding that all the parties are not signatories to the original or the same counterparts. For grp all purposes, including, without limitation, the recordation, filing and delivery of this Agreement, duplicate, unexecuted and unacknowledged pages of the counterpart may be discarded and the remaining mauung pages assembled as one (1) document. 55. FACSnMII.E DocumENTs. The partiesree to accept facsimile executed documents � ( as if they were originally signed documents. Any party submitting facsimile signatures shall provide the other parties with originally signed replacement documents within five (5) business days from the date of receipt bysuch other parties of the facsimile executed documents. P 56. NOTimEs. Unless otherwise provided herein, any notice to either party given under this Agreement shall be in writing and given by delivering the same to such party in person, or by sending the same by registered, certified or express mail, return receipt requested, first class A00610 40 Exhibit D postage prepaid, to the party's address as first noted herein, or as otherwise provided through written notice to the other party. 57. PUBLIC DEDICATION. Unless otherwise provided by OCEANSIDE in writing, this Agreement shall not be deemed a gift or dedication of the Project or the Property, or any portion thereof, to the general public, for the general public, or for any public use or purpose whatsoever, it being the intention and understanding of the parties that this Agreement be strictly limited to and for the purposes expressed herein for the development of the Project and the Property as private property. IN WrrNFSS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. COUNTY OF HAWAII "COUNTY" Approved as to form and legality: Corporation Counsel By Its Mayor l_+ OCEANSIDE 1250 "OCEANSIDE" Approved as to form and legality: By RED HILL 1250, INC. Its General e al Partner Its Legal Counsel By Richard T. Frye Its Vice President A00501 41 Exhibit D STATE OF HAWAII SS: COUNTY OF HAWAII On this day of , 1998 before me appeared , to me personally known, who, being by me duly sworn, did say that is the of the COUNTY OF HAWAII, a municipal corporation, and that the [ instrument was signed in behalf of said municipal corporation by authority of its County Council, and said acknowledged the instrument to be the free act and deed of said municipal corporation. Notary Public, State of Hawaii My commission expires: I l_- l _. A00502 42 Exhibit D STATE OF HAWAII SS: COUNTY OF HAWAII On this day of , 1998, before me appeared Richard T. Frye, to me personally known, who, being by me duly sworn, did say that he is the Vice President of Red Hill 1250, Inc., general partner of 1250 OCEANSIDE dba OCEANSIDE 1250, a Hawaii limited partnership, that the foregoing instrument was signed in the name of and in behalf of said partnership, and said Richard T. Frye acknowledged that he executed the same as his free act and deed and as the free act and deed of said partnership. Notary Public, State of Hawaii. My commission expires: A00503 43 Exhibit D Development Agreement Exhibits A00504 Exhibit D List of Exhibits Exhibit Description A Map describing portion of the Property owned by OCEANSIDE in fee simple and that portion that is leased. B Ordinance No. 96-8 l C Ordinance No. 96-7 D SMA Permit No. 345 E Use Permit No. 115 F SMA Permit No. 356 L G Ordinance No. 97-36 1 H Mamalahoa Highway bypass detail and description. I Enacting Resolution approving the Agreement (not available until after Council acts). 11 7 Project Plan-Agricultural lot community and its various components, including the lodge and coastline park. Excludes the Mamalahoa Highway Bypass. K Map identifying 260.8 acres as TMK 7-9-12:04 and 11, which is leased I from Ackerman Ranch. L Short Form of Ackerman Ranch lease. M Construction standards for the Mamalahoa Highway Bypass. g Y Yp N Sample Letter releasing OCEANSIDE from all further responsibilities and obligations with respect to segments of the Mamalahoa Highway Bypass. O Map of the relevant phases of the extension of Halekii Street through the Property. P Map of geographic areas for reimbursement. 1 A00505 Exhibit D List of Exhibits Exhibit Description Q Map of roadway stub-outs providing future connections between Property and its north and south boundaries. R Coastline Park S Ordinance No. 94-73 T1 Mamalahoa Highway Bypass TMK Map T2 Mamalahoa Highway Bypass TMK Map 2 A00506 Exhibit D . . • .. . . . - .. . . . i . • • . .•• • .....1... • . :: • 0 ‘. ' . ji - j :4 - — ; ' t1 : 1 1, ,. : di :•'3.••• .-1...::...,,::::. • ,. • • "i• -v..I• - z ' , " •'-• i. . -.-. - • • et.:X, 1 41441,-.127.-"-----..TF:7-::. ".24 I , - ..: -. -- h 4i1.41 '1' e-'1,'-,,:-1" ;11:'FP — ..-. -..--7•04 • iii -"--:**-:-..,-(;•'-'" - - (;_::.s•: 1 , 1 p 't..ti.i• -:.• ' I. •,ffl --ma:' • .. ' *-----7-:-•!- ;ti ji•:06 fa .. ...1-.; ;11 1 - • ...:: "'Tv -- - ".1 • i ... • • --f --t .•-' ' -:•-• s"-- "--• -- "*" .. ,.. ‘,...i - •, • 4 1 - -. - zi:,----•;-:,'„,,,,....0 4-. sp...;4 " ,•,..• -: : ,r-it k ' ' Al - -, ..ici- \ \01-lit. i A.;,... ):JO : r.,...• . . _ , itl , 0, ..4,4t. .... .1., 1 1,.fieli- :it. 1 1 ; ...:1...,...1 .!,.p.: ....i .........f.:.....‘..•.‘i;,‘;i. - .'. '' 4...... .. i ''.::i . .."' ''. ..•111 •0 : ‘:4,..i ,„, -I 3,-.-j. , . s.. 0,\? •" -." 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IQ i '`' 1--1( •K • ' .-.,.-- -, "1 cv,j_i_ L --.-. - _I - ;'' ' • , ....•?. ; 1 - , , i •--,..---i . —. . .-.• ...... 1 . fl—.4 12. 140r- .; -- -:„. _,..... • " " * 1;14 MO 4 i - - . , ...„41......• c.' ,... '4.4.• k .3 1 fel. .., 7 •-----1 ii- :. 4 x . ::: , . . ,Z,::..---• r----, ;!, , •• . •0 II N.::-...../.. ' .,.... .,. .• : ..... s. • t\i . " . . • •• 1 . . 3 , • 1°. ' : il 1 • . e: ? IL • I • !.,. •.., I. f .• :.• te 1 .• • I_ • .. - - '- • I. . M LEASE AREA A 0 0 5 0 7 1 EXHIBIT A Exhibit D The district classification of the following area situated at Honuaino 3rd and 4th. Hokukano 1st and 2nd and Kanaueue 1st and 2nd, North Kona, Hawaii. shall be Agricultural (A-la): PARCEL 2: Beginning at the Northwesterly corner of this parcel of land, being also a point on the Southerly boundary of Royal Patent 1098, Land Commission Award 614 to Charles Hall, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 5,408.20 feet North and 934.23 feet East and running by azimuths measured clockwise from True South: Thence, for the next sixty-seven (67) courses following along middle of stonewall and along Royal Patent 1098, Land Commission Award 614 to Charles Hall: 1. 172° 44' 35.46 feet to a point; f 2. 250° 06' 26.01 feet to a point; 3. 245° 26' 19.20 feet to a point; 4. 251° 15' 39.58 feet to a point; f 5. 259° 25' 18.68 feet to a point; 4l 6. 246° 50' 16.35 feet to a point; 7. 254° 27' 40.28 feet to a point; 8. 323° 16' 7.32 feet to a point; ( 9. 249° 32' 44.32 feet to a point; 10. 265° 01' 30" 16.93 feet to a point; 11. 271° 10' 30" 50.61 feet to a point; 12. 261° 46' 30" 67.77 feet to a point; 13. 256° 32' 30" 36.61 feet to a point; 14. 262° 38' 30.23 feet to a point; 15. 258° 17' 37.28 feet to a point; 16. 254° 45' 21.32 feet to a point; Auvu -3- Exhibit D 17. 257° 35' 30" 36.22 feet to a point; 18. 265° 03' 21.89 feet to a point; 19. 263° 53' 30" 45.49 feet to a point; 20. 266° 14' 44.43 feet to a point; 21. 249° 07' 32.29 feet to a point; 22. 256° 49' 30" 41.74 feet to a point; [ 23. 250° 03' 30" 91.17 feet to a point; 24. 257° 28' 88.18 feet to a point; .' 25. 253° 37' 30" 14.36 feet to a point; 26. 271° 49' 7.86 feet to a point; 27. 243*3 18' 30" 43.30 feet to a point; 28. 252° 36' 45.75 feet to a point; 29. 262° 29' 35.65 feet to a point; 30. 265° 31' 13.70 feet to a point; 31. 260° 35' 30" 76.29 feet to a point; 32. 268° 05' 30" 59.53 feet to a point; 33. 253° 44' 30" 12.40 feet to a point; 34. 259° 40' 25.69 feet to a point; 35. 264° 02' 51.71 feet to a point; 36. 259 49' 30" 85.74 feet to a point; 37. 266* 56' 48.70 feet to a point; 38. 265° 44' 61.02 feet to a point; 39. 272° 05' 60.95 feet to a point; 40. 269° 19' 30" 91.04 feet to a point; 41. 275° 29' 26.42 feet to a point; 42. 280° 52' 30" 26.76 feet to a point; -4- A00509 • Exhibit D 43. 272° 21' 30" 28.45 feet to a point; 44. 277° 12' 46.47 feet to a point; ( 45. 273° 22' 30" 84.54 feet to a point; 46. 273° 04' 30" 57.99 feet to a point; [ 47. 270° 29' 30.67 feet to a point; 48. 275° 46' 30" 91.01 feet to a point; 49. 267° 54' 30" 87.48 feet to a point; r 50. 261° 05' 30" 28.16 feet to a point; 51. 266° 13' 128.24 feet to a point; 52. 270° 26' 114.47 feet to a point; 53. 260° 09' 81.24 feet to a point; 54. 262° 27' . 166.66 feet to a point; 55. 261° 47' 108.98 feet to a point; 56. 243° 34' 33.10 feet to a point; [ 57. 259° 14' 30" 37.03 feet to a point; 58. 265° 34' 30" 77.10 feet to a point; 59. 262° 59' 118.99 feet to a point; 60. 256° 19' 39.78 feet to a point; 61. 262° 44' 82.08 feet to a point; [ 62. 267° 50' 34.11 feet to a point; 63. 265° 25' 63.09 feet to a point; 64. 273° 36' 30" 112.92 feet to a point; 65. 268° 50' 151.03 feet to a point; 66. 274° 59' 30" 35.27 feet to a point; 67. 268° 30' 30" 48.40 feet to a point; -5- A005 _ 0 1 Exhibit D Thence, for the next three (3)courses following along the Westerly side of old railroad and along the remainder of Grant 2029 to S. W. Makahiki: 68. 15° 00' 431.60 feet to a point; 69. 0° 23' 223.30 feet to a point; 70. 333° 44' 145.20 feet to a point; Thence, for the next seven (7) courses following along the Westerly side of old railroad and along the remainder of Grant 1453 to John Cavanah: 71. 319° 08' 63.63 feet to a point; 72. 327° 12' 30" 92.54 feet to a point; e 73. 333° 41' 55.11 feet to a point; 74. 341° 52' 42.41 feet to a point; 75. 350° 21' 65.77 feet to a point; 76. 357° 11' 30" 87.84 feet to a point; 77. 7° 46' 82.65 feet to a point; 78. 17° 59' 209.88 feet along the Westerly side of old railroad and along the remainders of Grant 1453 to John Cavanah and Grant 1463 to Keawe to a point; Thence, for the next ten (10) courses following along the Westerly side of old railroad and along the remainder of Grant 1463 to Keawe: 79. 15° 46' 30" 221.91 feet to a point; 80. 350° 40' 30" 86.03 feet to a point; 81. 346° 02' 30" 127.39 feet to a point; 82. 347° 43' 68.36 feet to a point; 83.. 356° 37' 108.84 feet to a point; 84. 358° 09' 110.66 feet to aoint; P , 85. 6° 27' 30" 75.31 feet to a point; -6- A00511 Exhibit D 86. 357° 30' 30" 143.26 feet to a point; 87. 8° 45' 30" 30.57 feet to a point; 88. 359° 52' 108.27 feet to a point; 89. 265° 47' 29.79 feet along the remainder of Grant 1463 to Keawe to a point; Thence, for the next eight (8)courses following along the Easterly side of old railroad and along the remainder of Grant 1463 to Keawe: 90. 357° 33' 107.96 feet to a point; 91. 352° 21' 72.88 feet to a point; 92. 356° 43' 30" 32.40 feet to a point; 93. 353° 27' 38.77 feet to a point; 94. 350° 36' 29.09 feet to a point; 95. 339° 51' 130.13 feet to a point; [ 96. 329° 39' 30" 32.22 feet to a point; 97. 326° 06' 51.01 feet to a point; 98. 324° 59' 10.48 feet along the Westerly face of stonewall and along the remainder of Royal Patent 5336, Land Commission Award 9413 to Kahana to a point; 99. 320° 39' 115.81 feet along the remainder of Royal Patent { 5336, Land Commission Award 9413 to Kahana to a point; 100. 67° 26' 30" 92.41 feet along wire fence and along Grant 992 to W. Whitmarsh to a point; 101. 70° 35' 63.69 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point; 102. 67° 10' 30" 124.47 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point; 103. 72° 45' 45" 371.54 feet along Grant 992 to W. Whitmarsh to a point; -7- A00512 Exhibit D I _ I 104. 79° 49' 199.17 feet along Grant 992 to W. Whitmarsh to a point; Thence, for the next twenty-three (23) courses following along middle of stonewall and along Grant 992 to I W. Whitmarsh: I _ 105. 82* 05' 30" 51.64 feet to a point; 106. 83° 18' 181.52 feet to a point; 107. 84° 58' 30" 118.82 feet to a point; 108. 85° 30' 30" 145.13 feet to a point; 109. 91° 09' 79.55 feet to a point; 110. 82° 04' 95.77 feet to a point; [ 111. 82° 31' 45" 212.72 feet to a point; 112. 359° 15' 512.31 feet to a point; l 113. 268* 21' 280.72 feet to aP oint; f 114. 259° 47' 379.67 feet to a point; 115. 260° 53' 149.26 feet to a point; 1 116. 259° 07' 153.59 feet to a point; i 117. 266° 02' 30" 90.63 feet to a point; I118. 250° 32' 115.64 feet to a point; ( 119. 240° 54' 54.22 feet to a point; L 120. 246° 41' 140.89 feet to a point; 1 121. 256° 30' 30" 95.53 feet to a point; 122. 240° 04' 30" 52.97 feet to a point; l 123. 245° 12' 30" 66.16 feet to a point; 124. 257° 45' 30" 34.33 feet to a point; 125. 239° 59' 72.54 feet to a point; I 126. 250° 39' 30" 70.76 feet to a point; -8- A00513 L_ Exhibit D f 127. 246° 08' 111.93 feet to a point; 128. 332° 14' 1,055.02 feet along the remainder of Grant 865 to John Nakookoo to a point; Thence, for the next four(4)courses following along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions: i _ 129. 64° 12' 628.00 feet to a point; 130. 79° 26' 602.00 feet to a point; [ 131. 77° 00' 987.00 feet to a point; 132. 72° 13' 704.7$ feet to a point; 133. 154° 42' 918.93 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainder of Grant 1587 to John Peters on a curve to the right with a radius of 1,030.00, the chord azimuth and distance being: 134. 174° 32' 30" 699.21 feet to a point; 135. 194° 23' 350.20 feet along the remainder of Grant 1587 I to John Peters to a point; Thence, following along the remainders of Grant 1587 to John Peters and Grant 1463 to Keawe on a curve to the left with a radius of 1,270.00 feet, the chord azimuth and distance being: 136. 165° 33' 1,224.95 feet to a point; 137. 136° 43' 68.92 feet along the remainder of Grant 1463 to Keawe to a point; Thence, following along the remainder of Grant 1463 to Keawe on a curve to the right with a radius of 1,030.00 feet, the chord azimuth and distance being: • { 138. 149° 59' 30" 473.03 feet to a point; 139. 163° 16' 839.35 feet along the remainders of Grant 1463 to Keawe, Grant 1453 to John Cavanah [ and Grant 2029 to S. W. Makahiki to a point; -9- A00514 �� Exhibit D Thence, following along the remainder of Grant 2029 to S. W. Makahiki on a curve to the left with a radius of 470.00 feet,the chord azimuth and distance being: 140. 136° 23' 15" 424.98 feet to a point; 141. 165° 15' 189.91 feet along Grant 1651 to Charles Hall to the point of beginning and containing an area of 295.539 Acres. (Refer to Parcel 2 as shown on Exhibit "A") SECTION 2. Section 25-88, Article 3, Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of properties described hereinafter as follows: The district classification of the following area situated at Halekii and Keekee 1st, South ff Kona, Hawaii, shall be Agricultural (A-la): r PARCEL 3: l . Beginning at the Northeasterly corner of this parcel of land, being also the Northwesterly corner of Lot 39 of Kona Scenic Subdivision, Unit II (File Plan 1591)and being a point on the Southerly boundary of Grant 865 to John Nakookoo, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 2,272.75 feet North and 8,616.61 feet East and running by azimuths measured clockwise from True South: Ij1. 350° 44' 55" 482.03 feet along Lots 39, 38, 37, 36, 35 and 34 of Kona Scenic Subdivision, Unit II (File Plan 1591) and along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions and along the Westerly end of Haleki'i Street to a point; 78° 30' 470.15 feet along Lot 3 (Government Land - County of Hawaii) to a point; 3. 348° 30' 438.70 feet along Lot 3 (Government Land - County of Hawaii) to a point; 4. 266° 28' 187.31 feet along Lot 3 (Government Land - County of Hawaii) to a point; 1 . -10- A00515 Exhibit D Thence, for the next eleven (11)courses following along middle of stonewall: 5. 4° 59' 157.50 feet along Lots 22 and 21 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 6. 17° 24' 30" 102.93 feet along Lots 21 and 20 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a [ point; 7. 7° 45' 30" 174.98 feet along Lots 20 and 19 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 8. 91° 17' 30" 56.46 feet along Lot 18 of Keekee Estates (File IPlan 2087)and along the remainder of Grant 977 to Panaunau to a point; 9. 355° 54' 30" 333.18 feet along Lots 18 and 17 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 1 Thence, for the next four(4)courses following along Grant 866 to Kapule: ij10. 86° 02' 30" 309.93 feet along Lot 2 to a point; 11. 80° 19' 207.35 feet along Lot 1 to a point; f12. 75° 14' 183.86 feet along Lot 1 to a point; 13. 79° 02' 674.13 feet along Lot i to a point; f ' 14. 177° 38' 634.16 feet along the remainder of Grant 977 to Panaunau to a point; 1 15. 75° 14' 1,338.05 feet along Grant 977 to Panaunau to a point; I16. 150° 55' 956.00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 17. 251° 45' 902.30 feet along Grant 865 to John Nakookoo to a point; I -11- A00516 1 Exhibit D Thence, for the next thirty-six (36) courses following along middle of stonewall and along Grant 865 to John Nakookoo: 18. 250° 02' 30" 41.72 feet to a point; 19. 238° 11' 30" 99.82 feet to a point; 20. 246° 13' 93.37 feet to a point; 21. 253° 29' 121.82 feet to a point; 22. 257° 51' 121.61 feet to a point; 23. 249° 33' 59.76 feet to aP oint; 24. 245° 51' 177.23 feet to a point; 25. 248° 02' 30" 92.17 feet to a point; 26. 240° 26' 30" 60.37 feet to a point; 27. 254° 58' 110.46 feet to a point; 28. 258° 29' 24.30 feet to a point; ( 29. 274° 56' 30" 31.91 feet to a point; 30. 260° 18' 30" 148.31 feet to a point; ( 31. 253° 43' 47.09 feet to a point; 32. 243° 21' 30" 89.60 feet to aP oint; 33. 263° 53' 30" 70.49 feet to a point; 34. 254° 39' 30" 21.88 feet to a point; 35. 269° 41' 41.10 feet to a point; 36. 288° 24' 45.97 feet to a point; 37. 255° 29' 30" 27.38 feet to a point; 38. 241 ° 21' 30.35 feet to a point; 39. 227° 12' 30" 53.91 feet to a point; 40. 216° 24' 30" 55.73 feet to aP oint• 41. 238° 55' 30" 27.24 feet to a point; Exhibit D 42. 255° 23' 30" 29.74 feet to a point; 43. 271° 22' 69.73 feet to a point; 44. 265° 04' 29.52 feet to a point; 45. 275° 29' 30" 98.69 feet to a point; 46. 271° 04' 85.71 feet to a point; 47. 277° 42' 30" 71.32 feet to a point; 48. 269° 46' 21.84 feet to a point; 49. 270° 48' 110.24 feet to a point; 50. 268° 22' 91.02 feet to a point; 51. 258° 19' 92.53 feet to a point; 52. 270° 26' 57.58 feet to a point; 53. 265° 38' 177.70 feet to the point of beginning and containing an area of 94.387 Acres, more or less. (Refer to Pacel 3 as shown [ on Exhibit "A") The district classification of the following area situated at Halekii, Keekee 1st and 2nd, Ilikahi, Kanakau 1st and 2nd, Kalukalu 1st, 2nd,and 3rd and Onouli 1st, South Kona, Hawaii, shall be Agricultural (A-1a): PARCEL 4: Beginning at the Southeasterly corner of this parcel of land, being also a point on the Northerly boundary of Grant 1162 to F. O. Schulze, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being ( 4,046.78 feet South and 6,502.93 feet East and running by azimuths measured clockwise from True South: 1. 65° 45' 54" 1,071.96 feet along middle of stonewall and along Grant 1162 to F. O. Schulze to a point; 2. 78° 08' 30" 1,407.43 feet along middle of stonewall and along Grant 1162 to F. O. Schulze to a point; Thence, for the next three (3) courses following along the remainder of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole: -13- A00518 Exhibit D 3. 203° 12' 488.09 feet to aP oint; Thence, following on a curve to the left with a radius of 870.00 feet, the chord azimuth and distance being: 4. 172° 50' 30" 879.41 feet to a point; 5. 142° 29' 272.49 feet to a point; Thence, following along the remainders of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole, Grant 1160 to H. N. Greenwell, and Grant 1576 to Lohi on a curve to the right with a radius of 1,130.00 feet, the chord azimuth and distance being: 6. 169° 47' 1,036.55 feet to a point; 7. 197° 05' 307.17 feet along the remainders of Grant 1576 to Lohi and Grant 1464 to Ialua to a point; Thence, following along the remainder of Grant 1464 to Ialua on a curve to the left with a radius of 645.00 feet, the chord azimuth and distance being: 8. 183° 07' 311.35 feet to aP oint; 9. 169° 09' 54.98 feet along the remainder of Grant 1464 to Ialua to a point; Thence,following along the remainders of Grant 1464 to Ialua and Grant 1175 to Nakauwaa on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 10. 186° 06' 411.07 feet to a point; 11. 203° 03' 162.63 feet along the remainder of Grant 1175 to Nakauwaa to a point; Thence, following along the remainder of Grant 1175 to Nakauwaa and Grant [ 1177 to Kamakahiona on a curve to the left with a radius of 645.00 feet, the chord azimuth and distance being: 12. 186° 42' 30" 362.96 feet to a point; L_. A00519 Exhibit D 13. 170° 22' 60.05 feet along the remainder of Grant 1177 to Kamakahiona to a point; Thence, following along the remainders of Grant 1177 to Kamakahiona and Grant 1176 to Kini on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 14. 186° 12' 384.70 feet to a point; Thence, for the next five (5) courses following along the remainder of Grant 1176 to Kini: 15. 202° 02' 35.26 feet to a point; Thence, following on a curve to the left with a radius of 30.00 feet, the chord azimuth and distance being: 16. 157° 02' 42.43 feet to a point; 17. 112° 02' 85.32 feet to a point; Thence, following on a curve to the left with a radius of 645.00 feet, the chord azimuth and distance being: 18. 97° 14' 329.53 feet to a point; 19. 82° 26' 397.26 feet to a point; Thence, following along the remainders of Grant 1176 to Kini and Royal Patent 1670 to John D. Parish on a portion of Land Commission Award [ 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions on a curve to the right with a radius of 705.00 feet, the chord azimuth ( and distance being: 20. 118° 34' 831.43 feet to a point; ( 21. 154° 42' 342.97 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 22. 252° 13' 704.78 feet along Grant 1587 to John Peters and Grant 865 to John Nakookoo to a point; l_ . -15- � � A00520 Exhibit D Thence, for the next three (3) courses following along Grant 865 to John Nakookoo: 23. 257° 00' 987.00 feet to a point; 24. 259° 26' 602.00 feet to a point; 25. 244° 12' 628.00 feet to a point; 26. 330° 55' 956.00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, [ Section 2 to American Board of Commissioners for Foreign Missions to a point; 27. 255° 14' 1,338.05 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 28. 357° 38' 634.16 feet along Grant 977 to Panaunau to a point; 29. 76° 40' 30" 1,596.74 feet along Grant 1177 to Kamakahiona to a point; 30. 76° 40' 30" 44.81 feet along Grant 1177 to Kamakahiona to a point; Thence, for the next six (6) courses following along the Westerly side of old ( railroad: ( 31. 353° 25' 54.23 feet to a point; L_ 32. 346° 06' 95.32 feet to a point; 33. 342° 16' 30" 289.54 feet to a point; 34. 341° 04' 132.29 feet to a point; 35. 345° 33' 48.71 feet along the remainders of Grant 1177 to Kamakahiona and Grant 1175 to Nakauwaa to a point; Thence, for the next six (6) courses following along the remainder of Grant 1175 to Nakauwaa: 36. 350° 55' 30" 47.80 feet to a point; -16- �,,. AOO 2i Exhibit D 37. 260° 45' 8.34 feet to a point; Thence, for the next four(4) courses following along the Westerly face of stonewall and along the Easterly side of old railroad: 38. 353° 43' 30" 58.69 feet to a point; 39. 1° 03' 30" 50.75 feet to a point; 40. 4° 06' 30" 32.09 feet to a point; 41. 9° 18' 30" 46.75 feet to a point; Thence, for the next four(4) courses following along the Northerly face of stonewall: 42. 79° 50' 28.51 feet along Grant 787 to H. N. Greenwell to a point; 43. 63° 01' 30" 205.62 feet along Grant 787 to H. N. Greenwell to a point; f Thence, for the next twenty-six(26)courses following along the remainder of Grant 787 to H. N. Greenwell: 44. 58° 15' 190.84 feet to a point; 45. 95° 12' 30" 36.26 feet to a point; Thence, for the next ten(10) courses following along the Westerly face of stonewall: 46. 340° 55' 30" 51.47 feet to a point; 47. 336° 12' 30" 95.40 feet to a point; 48. 340° 54' 85.38 feet to a point; 49. 338° 48' 30" 46.81 feet to a point; 50. 342° 23' 65.75 feet to a point; 51. 334° 35' 30" 65.95 feet to a point; 52. 332° 23' 82.87 feet to a point; 53. 324° 00' 11.13 feet to a point; 54. 332° 36' 30" 113.50 feet to a point; A00522 Exhibit D 55. 347° 43' 24.68 feet to a point; Thence, for the next four (4)courses following along the Westerly side of old railroad: 56. 338° 19' 61.45 feet to a point; 57. 327° 39' 30" 17.91 feet to a point; 58. 347° 16' 94.25 feet to a point; 59. 344° 55' 30" 113.58 feet to a point; 60. 267° 05' 30" 16.83 feet to a point; Thence, for the next six (6) courses following along middle of stonewall: 61. 341° 48' 30" 54.25 feet to a point; [ 62. 346° 24' 30" 109.52 feet to a point; 63. 330° 20' 62.30 feet to a point; 64. 336° 48' 111.89 feet to a point; 65. 325° 21' 106.90 feet to a point; 66. 62° 18' 30" 29.22 feet to a point; a Thence, for the next three (3)courses following along Westerly face of stonewall: 67. 337° 28' 30" 112.46 feet to a point; 68. 337° 08' 183.98 feet to a point; 69. 337° 36' 30" 153.52 feet to a point; 70. 254° 02' 30" 25.45 feet along the Southerly face of stonewall and along Grant 787 to H. N. Greenwell to a point; Thence, for the next seven (7) courses following along the Westerly side of old railroad and along the remainder of Royal Patents 4386 and 7146. Land Commission Award 8452 to A. Keohokalole: ( 71. 338° 26' 168.87 feet to a point; 72. 337° 34' 153.12 feet to a point; -18- A00523 Exhibit D 73. 335° 16' 30" 329.74 feet to a point; 74. 336° 16' 30" 122.94 feet to a point; 75. 334° 38' 30" 193.93 feet to a point; 76. 335° 59' 267.46 feet to a point; 77. 329° 13' 30" 141.50 feet to the point of beginning and containing an area of 271.415 Acres. (Refer to Parcel 4 as shown on Exhibit "A„.) All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part hereof(herein after referred to as "subject property"). SECTION 3. These changes in district classification are conditionedfollowing:upon the (A) The applicant, successors or assigns shall be responsible for complying with all of the stated conditions of approval; (B) The effective date of the rezoning shall be upon: (1) the execution of an agreement,g nt, between the applicant, Lyle Anderson, and the County through its Department of Water Supply and Planning, to assign water jcommitment rights in the Kealakekua Source Agreement to the current landowners of the subject property within one-hundred-eighty (180) days from [ the effective date of this ordinance; provided that a maximum ninety (90) day extension may be granted by the Planning Director with reasonable and sufficient justification; and (2) the acceptance by the Department of Water Supply of the required water commitmenta ment in accordance with its "Water Commitment y Policy" within one-hundred-eighty (180) days from the effective date of this ordinance; (C) Subdivision plans for any portion of the subject property shall be submitted to the [ Planning Department and Tentative Subdivision Approval secured within four(4) years from the effective date of this rezoning as determined in Condition B; Final Subdivision Approval shall be secured within five (5) years from the effective date of this rezoning as determined in Condition B. For the purpose of this ordinance, -19- A00524 Exhibit D If Final Subdivision Approval shall be defined as the subdivision of any agricultural zoned lot to a lot less than twenty (20) acres in size within the subject property; (D) A wastewater disposal system shall constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works, whichever is applicable; (E) All electrical and communication utilities lines within the subject property shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site; (F) A Flood Study of the subject property shall be submitted to the Planning Department in conjunction with plans submitted for subdivision review for any portion of the subject property. Drainage improvements shall be constructed in a manner meeting with the approval of the Department of Public Works, prior to the issuance of Final Subdivision Approval for the subject property; [ (G) An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division, prior to submitting plans for subdivision review. The Plan shall consist of three subplans: (1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim protection/preservation plan for the sites to undergo preservation, and 111 (3) an interpretation plan which shall include buffer zones, signage and long-range preservation concerns which may be submitted at a later date. Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the subject property; [_ (H) A final comprehensive public access plan. to be developed in consultation with community groups. shall be submitted to and approved by the Planning Director prior °- A00525 Exhibit D principal shoreline access parking area(s), signage and provisions for public access for night fishing and marine food gathering purposes over designated vehicular and pedestrian access routes subject to restrictions which limit said uses to recreation uses only, and other restrictions which provide for the health and safety of the general public and residents alike. The number of parking Stalls shall be increased commensurately with the approval of additional park phases in accordance with the public access plan; and a[(5)] The public shoreline access plan shall also integrate where appropriate, any public accessway(s) to interpretive trail system(s)and to the historical and archaeological sites to be approved by the Planning Director, in consultation �_. with the Department of Land and Natural Resources in conjunction with the detail mitigation plan for the park area situated in the Conservation district. (I) Prior to final approval of a small lot subdivision plat within the subject property, the applicant shall convey to the County of Hawaii by way of a perpetual easement the right to public access and recreational use of Ethel its privately owned coastline park and trails; provided, that restrictions [in accordance with Chapter 115, Hawaii Revised Statutes,] will be allowed to be established by the applicant, subject to the approval of the Planning Director, to promote public health and safety and the general security of the premises for residents and guest of the project to protect the area's pristine condition, and to minimize any liability to the applicant, pursuant to Chapter 520, Section 520-4, Hawaii Revised Statutes. The applicant shall retain ownership of its [own the] coastline park and trails in fee simple and maintain all lands in the coastline park area and operate such facility for public recreational use in accordance with the above terms and conditions. This condition shall not be applicable to any roadway, trail or other rights-of-way. which are deemed public highways or trails as defined in Chapter 264. Hawaii Revised Statutes; (J) Should any unidentified sites or remains such as artifacts, shell, bone, or charcoal deposits. human burials, rock or coral alignments, pavings or walls be encountered. work in the immediate area shall cease and the Planning Director shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken: -22- A00527 Exhibit D (K) A solid waste management plan shall be prepared meeting with the approval of the Department of Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the subject property. Approved recommendations and mitigation measures shall be implemented at a time and in a manner meeting with the approval of the Department of Public Works; (L) Roadway improvements and access(es) to the subject property, including all plans and construction, shall meet with the approval of the Department of Public Works. Prior to the issuance of Final Subdivision Approval for any portion of the subject property, the applicant shall: (1) construct the channelization and signalization of the Mamalahoa Highway- Haleki'i Street intersection; (2) determine the final right-of-way alignment of the entire Mamalahoa Highway Bypass [road as shown in Exhibit "C",] between the approximate vicinity of Keauhou and Captain Cook, including its intersection areas and its acquired ownership or control. The applicant shall provide the Planning Director with a [ metes and bounds description of each road right-of-way segment involved and evidence of its ownership or control as deemed necessary by the Planning Director. In lieu of the applicant obtaining or acquiring ownership or control of any segment [within the Phase Two portion] of the Mamalahoa Highway Bypass [road], the requirement shall be deemed fulfilled upon the county's formal initiation of condemnation action for such segments and an agreement has been entered into [to] between the applicant and the county providing for the applicant's reimbursement to the county for the acquisition of the lands condemned; (3) construct [Phase One of] the Mamalahoa Highway Bypass [as shown in Exhibit "C",] in its entirety between the approximate vicinity of Keauhou and Captain Cook, consisting of two lanes with sufficient right-of-way for a total of four lanes, provided further that the section of the Mamalahoa Highway - -23- A00528 Exhibit D for public use prior to the occupancy of any dwelling unit within the entire project area; [(4) construct the channelization improvements on Kuakini Highway at its intersection with the north end of the Mamalahoa Bypass;] (4.) [(5)] construct the extension of Haleki'i Street through the subject property as generally reflected in Exhibit "B", which phasing of improvements shall be approved by the Department of Public Works. [A] If. before the completion and opening of the entire MamalahoaEighway Bypass. a portion of said bypass is completed and opened. and said portion provides a connection to Haleki'i Street.. barricade or breakaway gate, meeting with the requirements of the Department of Public Works, shall be installed by the applicant as part of the required Haleki'i Street improvements] [prior to the completion of Phase 1 of the Mamalahoa Highway Bypass or the construction of any dwelling unit or golf course clubhouse facility, whichever occurs first.] The purpose of this condition is to prevent the use of Haleki'i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and a portion [the Phase 1 section ]of the Mamalahoa Highway Bypass until the entire proposed Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook has been completed and opened for general public use; and j,5 [(6)] provide roadway stub-outs, generally shown in Exhibit "B", to provide future connections between the subject property, [the Alii Highway, and southern { extensions there from;] and the adjacent properties to the north and south; provided that such stub-outs shall be constructed in accordance with the II construction phasing as approved by the Department of Public Works. The applicant shall construct the Mamalahoa Highway Bypass to [State Department of Transportation-Highways Division Standards for a regional arterial bypass highway g yp ss high ay or { segments thereof, and] standards set forth by the Department of Public Works for Alii Highway with such modifications as may be deemed necessary by the Department of Public Works. The applicant shall provide a landscape buffer along highway sections within five hundred feet of existing dwellings , as required by the chief engineer, to -?4- A00529 Exhibit D reduce the impacts of noise and light on the residents therein and to generally beautify the highway appearance in such locations[. Roadway segments providing the bypass's connection with the existing highways at its north termini shall be built to county dedicable standards for secondary arterials, pursuant to Chapter 23 of the Hawaii County Code, instead of the State DOT standards for major arterials, in the case where the roadway segment is consistent with a Department of Transportation plan which provides for such segments to be a lesser, connector road and for the later extension of the arterial bypass highway to be substantially further north or south before merging with other arterial roadways]; provided that the applicant shall enter into a reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction, land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom the county may determine as benefiting from the Mamalahoa Highway Bypass [Highway] and which funds are available to the county for such purpose; and provided further, that the total amount of reimbursement due to the applicant shall not exceed the total cost of land acquisition,design and construction of the Mamalahoa Highway Bypass [Highway] incurred by the applicant, less the pro rata portion attributed to the subject property; [(M) Prior to Final Subdivision Approval of any portion within Area 2 as shown in Exhibit "D" except for the golf course, golf clubhouse, lodge and related facilities, the applicant shall: (1) complete the construction of the Phase Two of the Mamalahoa Bypass consisting of two lanes with sufficient right-of-way for a total of four lanes as shown in Exhibit "C", meeting with the approval of the Department of Public Works, in consultation with the State Department of Transportation-Highways Division; and (2) complete the construction of the Mamalahoa Bypass channelization improvements at its intersection with Mamalahoa Highway and Napo'opo'o Road, meeting with the requirements of the Department of Public Works, in consultation with the State Department of Transportation-Highways Division;] -25- A00 '000 Exhibit D Ov11[(N)] All roadway improvements stated in Condition L [and M] of this ordinance shall be dedicated to the [appropriate government entity. Those improvements associated with the Mamalahoa Highway Bypass shall by offered to the State Director of Transportation pursuant to Section 264-1 of the Hawaii Revised Statutes. Any connector roadways, and any portion of the Mamalahoa Highway Bypass not accepted by the State Director of Transportation shall be dedicated to the County, as provided by law] County of Hawaii; (N)[O)] To ensure that the Goals and Policies of the Recreational Element of the General Plan are implemented, the applicant shall provide [a maximum of] two acres of land abutting the north side of Kona Scenic Park for public purposes prior to Final Subdivision Approval of the subject property. (Q[(P)] In lieu of actual construction of infrastructural as improvements required under P Conditions D, F, H, K, and,L,[and M,] the applicant may enter into an agreement with the Planning Director to assure the county that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable to the Planning Director and the Corporation Counsel. Upon execution of such agreement and/or filing of the security with the County, Final Subdivision j approval for the subject property or portions thereof shall be granted prior to the actual L construction of required infrastructural improvements; [(Q) The Applicant shall participate in the funding and construction of any regional roadway improvements as may be required by the State Department of Transportation, [ provided that any costs borne by the applicant shall be credited and limited to the amount of its fair share contribution for regional road and traffic impacts, as required in Conditions L and M]; (P)[(R)] It shall be demonstrated to the satisfaction of the Planning Director that agricultural activity is being conducted on the subdivided lots within three years from the date of Final Subdivision Approval. For the purposed of this condition. "agriculture" shall be defined as the cultivation of crops, including but not limited to flowers, vegetable. foliage. and fruits that are propagated for economic or personal use. An agricultural [ activity will be considered satisfactory: A00531 Exhibit D (1) if such activity is implementing a conservation program for the affected property(ies), as approved by the applicable soil and water conservation district directors and filed with the Soil Conservation Service; (2) if it provides a source of income to the person(s) who reside on the property; or (3) if the property is dedicated for agriculture uses in accordance with applicable Tax Department procedures and that such agriculture dedication shall be made a deed covenant and duly recorded with the State Bureau of Conveyances and a copy of the recorded deeds shall be filed with the Planning Department within one year from the date of Final Subdivision Approval. Each approved lot must comply with at least one of the above requirements to satisfy the conditions of approval of this ordinance; (Q)[(S)] Restrictive covenants in the deeds of all the proposed lots shall prohibit the construction of a second dwelling unit on each lot; provided that this shall not preclude the construction of a guest house as defined under Chapter 25 of the Hawaii County Code. A copy of the proposed covenant(s) to be recorded with the Bureau of [ Conveyances shall be submitted to the Planning Department for review and approval prior to final subdivision approval. A copy of the approved covenant shall be recited in an instrument executed by the applicant and the county and recorded with the Bureau of Conveyances likewise prior to final subdivision approval; [ T ] [The Applicant shall pay its fair share contribution to address potential regional impacts of the subject property with respect to park, fire, police, solid waste disposal [ facilities, sewer and roads. The fair share contribution shall be initially based on the representations contained within the change of zone application and may be increased or reduced proportionally if the agricultural lot counts are adjusted. The fair share contributions described below shall be adjusted annually based on the percentage change in the Honolulu Consumer Price Index(HCPI). The fair share contribution for each agricultural zoned lot of the propertyless than ten acres in size shall be g subject ( based on a maximum density for each lot as determined by the zoning resulting from f-_- this change of zone. The fair share contribution in a form of cash, land, facilities, or -27- A00532 Exhibit D any combination thereof shall have a maximum combined value of$ 4,701,205.74. In lieu of paying the fair share contribution, the applicant may construct such improvements/facilities related to park, fire, police, solid waste disposal facilities, sewers and roads with the approval of the appropriate agency(ies). Any contributions required by this ordinance that exceed the fair share requirement of this proposed development shall, at the applicant's request be credited towards any of the applicant's future developments that require infrastructural impact contributions; ] The applicant shall make its fair share contribution tomttl' ' ate thepotential g regional impacts of the subject property with respect to parks and recreation . fire- police. solid waste disposal facilities.androads. The amount of the fair share contribution shall be the sum which is the product of multiplying the number of lots proposed to be subdivided by the amounts allocated hereinbelow for each such lot-and shall become property or its increments. If the subject properly is subdivided in two or more increments. the amount of the fair share contribution due� and payable prior to final. subdivision approval of each increment shall be a sum calculated in the same manner according to the number of additional proposed lots in each such increment. The fair share contribution for each lot, except for lots larger than ten acres in size or which are committed exclusively for golf course and park purposes. shall be based on the maximum allowable density of building sites as determined by the zoning of such lot, ( The fair share contribution in a form of cash, land. facilities. or any combination thereof acceptable to the director in consultation with the affected agencies shall have a maximum combined value of$7,239.16 per lot. Based upon the applicant's representation of intent to subdivide and develop up to 400 lots, the indicated total fair share contribution is $2,895,664.00. however. the total amount shall be increased or reduced in proportion with the actual number of subdivided lots according to the calculation and payment provisions set forth in this Condition 0. The fair share contribution shall be allocated as follows: ill $3.490.85 per lot. for an indicated total of 51.396.340.00 to the County to support park and recreational improvements and facilities., 8 A00533 Exhibit D 1.21 $168.40 per lot. for anindicated total of$67. 60-00 to the County to support police facilities; . .- "id• . - . • . • I .4 II • 1 - • i t• ••• fire facilities; • .- • • ._• •l. _ -. • . • : • II • 1 - • • 1 • ••• y solid waste facilities; '. 1 • : •- • . . • .1e. • - a • • • 1 .7 I I • • - at- • •u tv to support road and traffic improvements. - • 1- - • 1 _ 'GO . ••v- • . •4. .•' - • . 11 .- ••11*• • three years after the effective date of this ordinance. based on the percentage change in the Honolulu Consumer Price Index (HCPI). Inlieu of paying the fair share contribution. the applicant may construct improvements/facilities related to parks and lice.�Qlid_waste recreation. fire. Ro disposal facilities. and_roads within the region impacted by the prQp4 d. vel.opment. subject to the approval of the planning director. The cost of constructing the improvements required in Conditions H. K and L shall be credited against the sum specified in ConditionR(I) for parks and recreation Conditio nR(4)for solid waste facilities._nad in Condition R(5) for road and traffic improvements. For purposes of administering Condition R. the value of land contributed or the cost of any improvements required or made in lieu of the fair share contribution shall be such amount as approved by the Planning Director. upon consultation with the appropriate agencies. [(U) The Applicant shall conform, to the best extent practicable, with the guidelines as provided within the Strategies for Energy Efficient Architecture by Hawaiian Design and the State Model Energy Code, in the construction of dwellings within the subject ro e P PrtY, ] (. [(T)] In the event that the State Department of Education adopts an educational facilities impact fee program, the applicant shall participate in the requirements of the program; -29- A00534 ( Exhibit D (3)[(W)] Comply with all applicable laws, rules, regulations and requirements, including those of the Department of Health, Fire, and the Department of Water Supply; (U)[(X)] Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance; (3.1)[(Y)] An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone. The report shall address in detail the status of the development and the compliance with the conditions of approval. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required; and, (W'[(Z)] An extension of time for the performance of conditions within the ordinance, with the exception of Condition C,may be granted by the Planning Director upon the following circumstances: (1) the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, and that are not the result of their fault or negligence; (2) granting of the time extension would not be contrary to the General Plan or Zoning Code; r (3) granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; (4) the time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year); and -30- A00535 Exhibit D (5) should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant's request to the County Council for appropriate action. Further, should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate rezoning of the area to its original or more appropriate designation." SECTION 2. In the event that any portion of the ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 3. This ordinance shall take effect upon its approval. [ INTRODUCED BY: Ars404. COUNCIL MEMBER, COUNTY OF H All -- {awaii f Introduction: December 15, 1995 f1st Reading: December 15, 1995 f 2nd Reading: January 3 , 1996 ( ive Date: January 15, 1996 APPROVED as to GALITY DE CORPORATION COUNSEL COUNTY OF HAWAII Date_._I/V 6 -31- A00536 Exhibit D 1- 1 i _ s s 3 I ' • - : lit ii =f r i fi�::i T g i g s { Z i ' 3 i t ; - 1 1 1!1 1 W l l �) �i=i l' '- i ' ' i " ; : .. 1 011.4; 1 �I=III 11•` 11 1 ' t '. 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A00538 Exhibit D OFFICE OF THE COUNTY CLERK County of Hawaii p Hilo Hawaii RECr._ ' ,:' !_ ( DR J1W)16 fill 7 57 r"FICE ': =ROLLCt�.T YpTE COUNT i OakY> ,tifAINOES ABS EX Introduced By: Takashi Damingo Arakaki X Date Introduced: December 15, 1995 ( Bonk-Abramson X II First Reading: December 15, 1995 Published: N/A Childs X De Lima X REMARKS: Domingo x Osorio x Rath x Ray x Smith X • 7 2 0 0 ( DRAFT 6 ) ROLL CALL VOTE Second Reading: January 3 , 1996 AYES NOES ABS EX To Mayor: January 4 , 1996- Returned: January 16, 1996 Aral`al" X Effective: January 15, 1996 Bonk-Abramson X Published January 24 , 1996 Gilds X De Lima X 1 REMARKS: Domingo X Osorio X Rath X Ray X • Smith X 7 2 0 0 I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as indicated above. Ofijr. A464" /, COUNCIL CHAIRMAN 11,1-1,1.2.- „Aee.____,_________ COUNTY CLERK Approved Bistippruvrd this day of d`I ,199(' A00539 C61,L, ,/ ,/ ii4 1OR,COUNTY All Bill No.: 181 (Draft 6 ) Reference C-821/PC-91 Ord No.: 9$',X hlt 1) COUNTY OF HAWAII STATE OF HAWAII BILL NO. 158 (Draft 5) 96 7 ORDINANCE NO. AN ORDINANCE AMENDING SECTION 25-87 (NORTH KONA ZONE MAP) , AND SECTION 25-88 (SOUTH KONA ZONE MAP) , ARTICLE 3 , CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE, BY CHANGING THE DISTRICT CLASSIFICATION FROM UNPLANNED (U) TO AGRICULTURAL (A-la) AT HONUAINO 3RD AND 4TH, HOKUKANO 1ST AND 2ND, HALEKII, KEEKEE 1ST AND 2ND, ILIKAHI , KANAKAU 1ST AND 2ND, KALUKALU 1ST, 2ND AND 3RD AND ONOULI 1ST, NORTH AND SOUTH KONA, HAWAII, COVERED BY TAX MAP KEY 7-9-12 : 4 , 11 AND PORTION OF 3 AND 8-1-4 : PORTION OF 3 . BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII : SECTION 1 . Section 25-87, Article 3 , Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of property described hereinafter as follows : The district classification of the following area situated at Honuaino 3rd and 4th, Hokukano 1st and 2nd and Kanueue 1st and 2nd, North Kona, Hawaii shall be Agricultural (A-1a) : PARCEL 1 : Beginning at the Northeasterly corner of this parcel of land, being also an angle point on the Southerly boundary of Royal Patent 1098 , Land Commission Award 614 to Charles Hall, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" , being 5 , 408 . 20 feet North and 934 . 23 feet East and running by azimuths measured clockwise from True South: 1 . 345° 15 ' 189 . 91 feet along Grant 2029 to S . W. Makahiki to aP oint : ( Thence, following along the remainder of Grant 2029 to S . W. Makahiki on a curve to the right with a radius of 470 . 00 feet, the chord azimuth and distance being: A00540 EXHIBIT C Exhibit D 2 . 316° 23 ' 15" 424 . 98 feet to a point ; 3 . 343° 16 ' 839 . 35 feet along the remainders of Grant 2029 to S . W. Makahiki, Grant 1453 to John Cavanah and Grant 1463 to Keawe to a point; Thence, following along the remainder of Grant 1463 to Keawe on a curve to the left with a radius of 1030 . 00 feet, the chord azimuth and distance being: r 4 . 329° 59 ' 30" 473 . 03 feet to a point; 5 . 316° 43 ' 68 . 92 feet along the remainder of Grant 1463 to Keawe to a point; Thence, following along the remainder of Grant 1463 to Keawe and Grant 1587 to John Peters on a curve to the right with a radius of 1270 . 00 feet, the chord azimuth and distance being: 6 . 345° 33 ' 1224. 95 feet to a point; 7 . 14° 23 ' 350 . 20 feet along the remainder of I Grant 1587 to John Peters to a point; Thence, following along the remainder of Grant 1587 to John Peters on a curve to the left with a radius of 1030 . 00 feet, the chord azimuth and distance being: 8 . 354° 32 ' 30" 699 . 21 feet to a point; 9 . 334° 42 ' 918 . 92 feet along the remainder of Grant 1587 to John Peters to a point; Thence, for the next three (3) courses following along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387 , Part 4 , Section 2 to the American Board of Commissioners for Foreign Missions : -2- A00541 Exhibit D 10 . 66° 00 ' 770 . 00 feet to a point ; 11 . 74° 30 ' 930 .00 feet to a point; 12 . 67° 00 ' 285 . 65 feet to a point ; Thence, for the next twenty-one (21) courses following along the remainder of Grant 1651 to Charles Hall : 13 . 179° 00 ' 416 . 28 feet to a point; 14 . 149° 00 ' 221 . 00 feet to a point; ( 15 . 52° 00 ' 205 . 00 feet to a point; 16 . 67° 00 ' 304 . 00 feet to a point ; 17 . 80° 00 ' 573 . 00 feet to a point ; 18 . 102 ° 00 ' 259 . 00 feet to a point ; 19 . 136° 00 ' • 441 . 00 feet to a point ; 20 . 120° 00 ' 641 . 00 feet to a point; 21 . 137° 00 ' 256 . 00 feet to a point; 22 . 168° 20 ' 1123 . 00 feet to a point; Li 23 . 163° 30 ' 456 . 00 feet to aP oint; 24 . 206° 00 ' 214 . 09 feet to a point; 25 . 243° 00 ' 693 . 46 feet to a point; [ 26 . 193° 00 ' 282 . 00 feet to a point; 27 . 222° 00 ' 513 . 00 feet to a point; 28 . 210° 19 ' 324 . 00 feet to a point; ( 29 . 198° 00 ' 497 . 68 feet to a point; 30 . 181° 00 ' 307 . 60 feet to a point; [ 31 . 258° 00 ' 140 . 74 feet to a point; 32 . 188° 49 ' 30" 106 . 80 feet to a point; �_ . 33 . 170° 53 ' 443 . 95 feet to a point; -3- x00542 Exhibit D [ 34 . 268° 39 ' 20 . 00 feet along Honalo-Kainaliu Beach Road; Thence, for the next four (4) courses following along middle of stonewall and along Land Commission Award 3659 to J. Martin: 35 . 272° 51 ' 57 . 35 feet to a point ; 36 . 267° 36 ' 189 . 05 feet to a point; 37 . 269° 43 ' 203 . 15 feet to a point; 38 . 275° 15 ' 223 .35 feet to a point; Thence, for the next three (3) courses following along middle of stonewall and along Royal Patent 1098 , Land Commission Award 614 to Charles Hall : 39 . 268° 14 ' 434 . 20 feet to a point ; 40 . 275° 04 ' 236 . 30 feet to a ;oint P ( 41 . 262° 13 ' 206 .40 feet to the point of beginning and containing an area of 383 . 952 Acres, more or less . (Refer to Parcel 1 as shown on [j Exhibit "A" ) . SECTION 2 . Section 25-88 , Article 3 , Chapter 25 (Zoning Code) � . of the Hawaii County Code, is amended to change the district ( classification of property described hereinafter as follows : The district classification of the following area situated at Halekii , Keekee 1st and 2nd, Ilikahi, Kanakau 1st and 2nd, Kalukalu 1st , 2nd and 3rd and Onouli 1st, South Kona, Hawaii, shall be Agricultural (A-la) : -4 - A 0 0 5 4 3 Exhibit D f PARCEL 2 : Beginning at the Northeasterly corner of this parcel of land, being also an angle point on the Southerly boundary of Grant 1587 to John Peters, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU CHAU" , being 601 . 01 feet North and 2 , 479 . 11 feet East and running by azimuths measured clockwise from True South: I1 . 334° 42 ' 342 . 98 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4 , Section 2 to the American Board of Commissioners for Foreign Missions to apoint : I _ Thence, following along the remainders of Royal Patent 11670 to John D. Parish on a portion of Land Commission Award 387, Part 4 , Section 2 to the American Board of Commissioners for Foreign • Missions and Grant 1176 to Kini on a curve to the left with a radius of 705 . 00 feet, the chord azimuth and distance being: 2 . 298° 34 ' 831 . 43 feet to a point; II 3 . 262° 26 ' 397 . 26 feet along the remainder of ( Grant 1176 to Kini to a point; ( Thence, following along the remainder of Grant 1176 to Kini on a curve to the right with a radius of 645 . 00 feet, the chord azimuth and distance being: 4 . 277° 14 ' 329 . 53 feet to a point; 5 . 292° 02 ' 85 . 32 feet along the remainder of Grant 1176 to Kini to a point ; Thence, following along the remainder of Grant 1176 to Kini on a curve to the right with a radius of Exhibit D 30 . 00 feet, the chord azimuth and distance being: 6 . 337° 02 ' 42 . 43 feet to a point ; 7 . 22° 02 ' 35 . 26 feet along the remainder of Grant 1176 to Kini to a point; Thence, following along the remainders of Grant 1176 ( to Kini and Grant 1177 to Kamakahiona on a curve to the left with a radius of 705 . 00 ( feet, the chord azimuth and distance being: 8 . 6° 12 ' 384 . 70 feet to a point; 9 . 350° 22 ' 60 . 05 feet alongthe remainder of Grant 1177 to Kamakahiona to a �. point; Thence, following along the remainders of Grant 1177 ( to Kamakahiona and Grant 1175 to Nakauwaa on a curve to the right with a radius of 645 . 00 feet, the chord azimuth and distance being: 10 . 6° 42 ' 30" 362 . 96 feet to a point; 111 . 23° 03 ' 162 . 63 feet along the remainder of Grant 1175 to Nakauwaa to a ( point; Thence, following along the remainders of Grant 1175 to Nakauwaa and Grant 1464 to [ Ialua along a curve to the l left with a radius or 705 . 00 feet, the chord azimuth and distance being: 12 . 6° 06 ' 411 . 07 feet to a point ; 13 . 349° 09 ' 54 . 98 feet along the remainder of Grant 1464 to Ialua to a point ; Thence, following along the remainder of Grant 1464 to Ialua on a curve to the right with a radius of 645 . 00 feet , the chord azimuth and distance being: -6- A00 5 Exhibit D 14 . 3° 07 ' 311 . 35 feet to a point ; 15 . 17° 05 ' 307 . 17 feet along the remainders of Grant 14.64 to Ialua and Grant ( 1576 to Lohi to a point; Thence, following along the remainders of Grant 1576 to Lohi , Grant 1160 to H. N. Greenwell and Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole ( on a curve to the left with a radius of 1130 . 00 feet, the chord azimuth and distance being : 16 . 349° 47 ' 1036 . 55 feet to a point; 17 . 322° 29 ' 272 . 49 feet along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole to a point ; Thence, following along the remainder of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole on a curve to the right with a radius of 870 . 00 feet, the chord azimuth and distance being: 18 . 352° 50 ' 30" 879 . 41 feet to a point; 19 . 23° 12 ' 488 . 09 feet along the remainder of Royal Patents 4386 and 7146, Land 'Commission Award 8452 to A. Keohokalole to a point; Thence, following along middle of stonewall and along Grant 1162 to F. 0. Shulze, the direct azimuth and distance being: L_ 20 . 78° 08 ' 30" 958 . 38 feet to a point; Thence, following along middle of stonewall and along F Grant 1162 to F. 0. Shulze, the direct azimuth and fdistance being: L . 21 . 57° 14 ' 50 " 1532 . 00 feet to a , oint ; P • -7- A00546 Exhibit D Thence, for the next four (4) courses following along the remainder of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole : 22 . 160° 00 ' 200 . 00 feet to a point; 23 . 149° 00 ' 452 . 00 feet to a point; ( 24 . 160° 51 ' 628 . 00 feet to a point; 25 . 152° 30 ' 327 . 00 feet to a point; [ 26 . 182° 19 ' 313 . 00 feet along the remainders of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole and Grant 1745 to John Cavanah to a point; Thence, for the next five (5) courses following along the remainder of Grant 1745 to John Cavanah: 27 . 171° 27 ' 400 . 00 feet to a point; 28 . 161° 20 ' 606 . 00 feet to a point; [ 29 . 175° 16 ' 440 . 00 feet to a point; 30 . 182° 42 ' 30" 1190 . 00 feet to a point; 31 . 155° 00 ' 489 . 00 00 feet to a point; 32 . 181° 00 ' 353 . 00 feet along the remainders of Grant 1745 to John Cavanah and Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4 , Section 2 to the American Board of Commissioners for [ Foreign Missions to a point; 33 . 153° 00 ' 492 . 00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4 , Section 2 to the American [_ Board of Commissioners for Foreign Missions to a point ; 34 . 179° 00 ' 126 . 72 feet along the remainder of Royal Patent 1670 to John D. ( -8- A0054 Exhibit D Parish on a portion of Land Commission Award 387, Part 4 , Section 2 to the American Board of Commissioners for Foreign Missions to a point; ( 35 . 247° 00 ' 285 . 65 feet along Grant 1651 to Charles Hall to a point ; 36 . 254° 30 ' 930 . 00 feet along Grant 1651 to Charles Hall to a point ; 37 . 246° 00 ' 770 . 00 feet along Grant 1587 to John Peters to the point .of E beginning and containing an area of 372. 010 Acres, more or less . All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part hereof herein after referred to as "subject property" ) . SECTION 3 . These changes in district classification are conditioned upon the following: A. The applicant, successors or assigns shall be responsible for complying with all of the stated conditions of approval . B . The applicant, successors or assigns shall be responsible for complying with all requirements of Chapter 205, Hawaii Revised Statutes, relating to permissible uses within the State Land Use Agricultural District . C. The effectuation of the water commitment rights in the Kealakekua Source Agreement to the current landowners of the subject property with the acceptance of the prevailing facilities charge for the 499 units of water by the Department of Water -9- A00548 Exhibit D Supply of the required water commitment payment shall be in accordance with its "Water Commitment Policy" . Prior to approval of the 500th lot within the development area, the applicant shall secure the necessary "Water Commitments" and comply with the Department of Water Supply' s "Water Commitment Policy" for the remaining units of water for the proposed subdivision and golf course development . D. Subdivision plans for any portion of the subject property for this change of zone shall be submitted to the Planning Department and Final Subdivision Approval secured within five (5) years from the effective date of this ordinance . E . A wastewater disposal system shall be constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works, whichever is applicable . F. All electrical and communication utilities and systems within the subject property shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site . G. A Flood Study of the subject property shall be submitted to the Planning Department in conjunction with plans submitted for subdivision review for any portion of the subject property. Drainage improvements shall be constructed in a manner meeting with the approval of the Department of Public Works, prior to the issuance of Final Subdivision Approval for the subject property. -10- A00549 Exhibit D H. An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division and Hawaiian community organizations, prior to submitting plans for subdivision review. The Plan shall consist of three subplans : 1 . an archaeological data recovery plan for the sites to undergo data recovery, 2 . a detailed interim protection/preservation plan 1, for the sites to undergo preservation, and 3 . an interpretation plan which shall include buffer zones, signage and long-range preservation concerns which may be submitted at a later date . Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the subject property. T. Should any unidentified sites or remains such as artifacts, shell, bone, or charcoal deposits, human burials, rock or coral alignments, pavings or walls be encountered, work in the immediate area shall cease and the Planning Director shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken. J. A solid waste management plan shall be prepared meeting with the approval of the Department of -11- A005 '60 Exhibit D Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the proposed development . Approved recommendations and mitigation measures shall be implemented at a time and in a manner meeting with the approval of the Department of Public Works . K. A final comprehensive public access plan, to be developed in consultation with community groups, shall be submitted to and approved by the Planning Director prior to final subdivision approval, or any land alteration activity, whichever comes first . The final comprehensive public access plan shall be developed in consultation with the Planning Director and the Department of Land and Natural Resources and ( shall include mauka-makai and lateral shoreline l-- accesses, parking area (s) , signage, emergency response considerations, restrictions on use (if any) , provision of recreational and restroom facilities at appropriate locations, and related improvements; provided, that the construction of the coastline park and access ways shall be subject to ( the obtaining of all necessary discretionary permits (e.g. , Conservation District Use Approval, Special Management Area Use Permit, etc. ) ; provided, further, that the applicant shall be responsible to comply with the following terms and conditions : 1 . An area comprising twenty-five percent (25%) of the total park area, as shown on Exhibit "E" attached hereto and made a part hereof, shall be developed and improved by the applicant or its agent in phases within five (5) years from -12- A0056 _ Exhibit D the date Final Subdivision Approval is obtained on the subject property. The first phase shall be completed and open to the public within thirty (30) days following the opening of the golf course; 2 . Upon opening the first phase of the park area, a minimum of twenty-five (25) public parking stalls in addition to parking stalls for residents, guests, and employees within the subject property and the applicant ' s adjacent lands at the principal shoreline access parking area (s) , signage and provisions for public access for night fishing and marine food gathering purposes over designated vehicular ( and pedestrian access routes subject to restrictions which limit said uses to recreation uses only, and other restrictions which provide for the health and safety of the figeneral public and residents alike . The number of parking stalls shall be increased commensurately with the approval of additional park phases in accordance with the public access plan; and I 3 . The public shoreline access plan shall also { integrate where appropriate, any public accessway(s) to interpretive trail system(s) and to the historical and archaeological sites to be approved by the Planning Director, in consultation with the Department of Land and Natural Resources in conjunction with the detail mitigation plan for the park area situated in the Conservation district . -13- A00004 Exhibit D L. Prior to final approval of a small lot subdivision plat within the subject property, the applicant shall convey to the County of Hawaii by way of a perpetual easement the right to public access and recreational use of its privately owned coastline park and trails; provided, that restrictions will be ( allowed to be established by the applicant, subject to the approval of the Planning Director, to promote ff public health and safety and the general security of the premises for residents and guest of the project to protect the area' s pristine condition, and to [ minimize any liability to the applicant, pursuant to Chapter 520, Section 520-4 , Hawaii Revised Statutes . The applicant shall retain ownership of its coastline park and trails in fee simple and maintain all lands in the coastline park area and operate such facilityforpublic recreational use in accordance with the above terms and conditions . This tI condition shall not be applicable to any roadway, trail or other rights-of-way, which are deemed LIpublic highways or ' trails as defined in Chapter 264 , Hawaii Revised Statutes; M. Roadway improvements and access (es) to the subject property, including all plans and construction, shall meet with the approval of the Department of P P Public Works . Prior to the issuance of Final Subdivision Approval for any portion of the subject Fproperty, the applicant shall : __ 1 . construct the channelization and signalization of the Mamalahoa Highway-Haleki ' i Street intersection; -14- �__ A 0 05 3 Exhibit D 2 . determine the final right-of-way alignment of the entire Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook, including its intersection areas and its acquired ownership or control . The applicant shall provide the Planning Director with a metes and bounds description of each road right-of-way segment involved and evidence of its ownership or control as deemed necessary by the Planning Director. In lieu of the applicant obtaining or acquiring ownership or control of any segment of the Mamalahoa Highway Bypass, the requirement shall be deemed fulfilled upon the county' s formal initiation of condemnation action (s) for such segments and an agreement has been entered into between the applicant and the county providing for the [ applicant ' s reimbursement to the county for the II acquisition of the lands condemned; 3 . construct the Mamalahoa Highway Bypass in its entirety between the approximate vicinity of Keauhou and Captain Cook, consisting of two lanes with sufficient right-of-way for a total of four lanes, provided further, that the section of the Mamalahoa Highway Bypass between Keauhou and Haleki ' i Street shall be completed and available for public use prior to the occupancy of any dwelling unit within the entire project area; 4 . construct the extension of Haleki' i Street through the subject property as generally reflected in Exhibit "B", which phasing of improvements shall be approved by the -15- A 0 0r Exhibit D Department of Public Works . If, before the completion and opening of the entire Mamalahoa Highway Bypass, a portion of said bypass is completed and opened, and said portion provides a connection to Haleki' i Street, a barricade or breakaway gate meeting with the requirements of the Department of Public Works, shall be installed by the applicant as part of the required Haleki' i Street improvements . The purpose of this condition is to prevent the use of Haleki' i Street as a vehicular thoroughfare [ between the existing Mamalahoa Highway and a portion of the Mamalahoa Highway Bypass until the entire proposed Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook has been completed and opened for general public use; and 5 . provide roadway stub-outs, generally shown in Exhibit "B", to provide future connections 1jbetween the subject property and the adjacent properties to the north and south; provided that such stubouts shall be constructed in accordance with the construction phasing as approved by• the Department of Public Works . The applicant shall construct the Mamalahoa Highway Bypass to standards set forth by the Department of Public Works for Alii Highway with such Fmodifications as may be deemed necessary by the Department of Public Works . The applicant shall provide a landscape buffer along highway sections within five hundred feet of existing dwellings, as required by the chief engineer, to reduce the impacts of noise and light on the residents therein -16- A005b i Exhibit D and to generally beautify the highway appearance in such locations; provided that the applicant shall enter into a reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction, land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or [ landowners whom the county may determine as benefiting from the Mamalahoa Highway Bypass and which funds are available to the county for such purpose; and provided further, that the total amount of reimbursement due to the applicant shall not exceed the total cost of land acquisition, design and construction of the Mamalahoa Highway Bypass incurred by the applicant, less the pro rata portion attributed to the subject property; N. In lieu of actual construction of infrastructural improvements as required under Conditions E, G, J, K, and M, the applicant may enter into an agreement with the Planning Director and the Department of Public Works and the Department of Water Supply, if • applicable, to assure the county that the infrastructural improvements will be constructed together with the appropriate bond, surety or other [ security deemed acceptable to the Planning Director and approved by the Corporation Counsel . Upon execution of such agreement and filing of the security with the county, if applicable, Final Subdivision Approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements . -17- P, 0 0556'� �' r . ..� Exhibit D 0. The applicant shall make its fair share contribution to mitigate the potential regional impacts of the subject property with respect to parks and recreation , fire, police, solid waste disposal facilities, and roads . The amount of the fair share contribution shall be the sum which is the product of multiplying the number of lots proposed to be subdivided by the amounts allocated hereinbelow for ( each such lot, and shall become due and payable prior to final subdivision approval for any portion of the subject property or its increments . If the subject property is subdivided in two or more increments, the amount of the fair share Icontribution due and payable prior to final subdivision approval of each increment shall be a sum calculated in the same manner according to the (( number of additional proposed lots in each such ( increment . The fair share contribution for each L lot, except for lots larger than ten acres in size or which are committed exclusively for golf course ijand park purposes, shall be based on the maximum allowable density of building sites as determined by [ the zoning of such lot . The fair share contribution in a form of cash, land, facilities, or any combination thereof acceptable to the director in consultation with the affected agencies g nca.es shall have a maximum combined value of $7, 239 .16 per lot. Based upon the applicant ' s representation of intent to subdivide and develop up to 400 lots, the indicated L total fair share contribution is $2, 895, 664 . 00, however, the total amount shall be increased or f reduced in proportion with the actual number of subdivided lots according to the calculation and Ipayment provisions set forth in this Condition 0. [ -18- Exhibit D f ' The fair share contribution shall be allocated as follows : 1 . $3, 490 . 85 per lot, for an indicated total of $1, 396, 340 . 00 to the County to support park and (-_ recreational improvements and facilities; 2 . $168 .40 per lot, for an indicated total of ( $67, 360 . 00 to the County to support police facilities; 3 . $332 . 61 per lot, for an indicated total of $133, 044 .00 to the County to support fire facilities; 4 . $145 . 62 per lot, for an indicated total of $58, 248 . 00 to the County to support solid waste ( facilities; 5 . $3, 101 . 68 per lot, for an indicated total of , $1,240, 672 . 00 to the State or County to support road and traffic improvements . The fair share contributions described above shall be adjusted annually beginning three years after the effective date of this ordinance, based on the percentage change in the Honolulu Consumer Price Index (HCPI) . In lieu of paying the fair share contribution, the applicant may construct and contribute improvements/facilities related to parks and recreation, fire, police, solid waste disposal facilities, and roads within the region impacted by the proposed development, subject to the approval of the director. The cost of constructing the improvements required in Conditions J, K and M shall -19- A00558 Exhibit D be credited against the sum specified in Condition 0 (4) for solid waste facilities, Condition 0 (1) for parks and recreation, and in Condition 0 (5) for road and traffic improvements . For purposes of administering Condition 0, the value of land contributed or the cost of any improvements required or made in lieu of the fair share contribution shall be such amount as approved by the Planning Director, upon consultation with the appropriate agencies . ff P. Comply with all applicable laws, rules, regulations and requirements, including those of the Department of Health, Fire, State Department of Education and the Department of Water Supply. Q. Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition. of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees LIOrdinance . R. An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone. The report shall address in detail the status of the development and the compliance with the conditions of approval . This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required. -20- AOO5 9 Exhibit D S . An extension of time for the performance of conditions within the ordinance, with the exception of Condition C, may be granted by the Planning Director upon the following circumstances : 1 . the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, and that are not the result of their fault or negligence; 2 . granting of the time extension would not be contrary to the General Plan or Zoning Code; [ 3 . granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; 4 . the time extension granted shall be for a EJ period not to exceed the period originally ( granted for performance (i .e. , a condition to be performed within one year may be extended for up to one additional year) ; and 5 . should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant ' s request to the County Council for appropriate action. Should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate rezoning of the area to its original or more appropriate designation. -21- n: �� A0056 Exhibit D SECTION 4 . In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance . SECTION 5 . This ordinance shall take effect upon its approval . INTRODUCED BY: LOCrafewom04.011: COUNCIL MEMBER, LINTY OF HAW I Hilo, Hawaii Date of Introduction: December 15, 1995 Date of 1st Reading: December 15, 1995 Date of 2nd Reading: January 3 , 1996 Effective Date : January 15 , 1996 A►"''O"ED as to DEPU _-._ . cc IIanrJHi) Date III L_. -22 - A00361 Exhibit D • Yi t j i x t i s L i : ' _ s=a Ji:iJ! i iii ill t �'�i • , "' .. 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A00564 Exhibit D OFFICE OF THE COUNTY CLERK County of Hawaii EC Hilo , Hawaii R E (DRAFT 4) '96 JON 16 ill 7 57 !Vt.f 9ALL VOTE C LER 1� ACILV N T NOES;..w x fIlS EX Introduced By: Takashi Domingo Date Introduced: December 15, 1995 Arakala X Bonk-Abramson X First Reading: December 15, 1995 Childs X ( Published: N/ADe Lima X REMARKS: Domingo X Osorio X - Rath X Ray X Smith X 7 2 0 0 (DRAFT 5 ) ROLL CALL VOTE ISecond Reading: January 3 , 1996 AYES NOES ABS EX To Mayor: January 4 , 1996 Returned: January 16, 1996 'mak' X Effective: January 15, 1996 Bonk-Abramson X Published January 24 , 1996 Childs X De Lima X REMARKS: Domingo X LOsorio - X Rath X [ Ray. X Smith X 7 2 0 0 fI DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council andP ublished as indicated above. - _v)4A's" --al (---e------ COUNCIL CHAIRMAN 1 AA77e.e. P--%<--- COUNTY CLERK 1 Appr ved/Bis-approved this 1.6.-- day of , 19 41.6 . / / 'DR, COUNTY r ►: WAI1 Bill 158 (Draft 5 ) Reference: C-734/PC-88 Ord No.: S 7 Exhibit D ( n Stephen K.YamaShiro ' �yys INaYOr •:• �?%9 • r Qtuunfu of Athinii PLANNING COMMISSION 25 Aupu&tl&recr,Room 109 • 11i1o,Hawaii 96720.4252 (808)961.8288 F. (808)961-9615 SZRTI ZED MATT, I • ( November 5, 1993 l • Mr. Richard Frye, Project Manager Oceanside 1250 74-5620A Palani Road, Suite 200 Kailua-Kona, HI 96740 Dear Mr. Frye: Change of Zone Application (REZ 93-5) (, Request: Agricultural-Snore (A-5a) and Unplanned (U) to Agricultural-!.acre (A-la) ; Use Permit Application (USE 93-2) Request: 27-Hole Golf Course, Golf Clubhouse, Driving Range and Related Improvements Special Management Area (SMA) Use Permit Application (SMA 93-1) Request: 27-Hole Golf Course, Driving Range, Public Shoreline Access and Related Improvements Applicant: Oceanside 1250 TMK: 7-9-6:portion of 1; 7-9-12:portions of 3, 4 , 5 & 11; and 8-1-4 :portion of 3 The Planning Commission at its duly held public hearing on October. 27, 1993, voted to recommend the approval of the above-referenced change of Zone request to the County Council. The Commission also voted to approve the above-referenced Use Permit and Special Management Area (SMA) Use Permit applications. The subject properties are located makai of the Mamalahoa Highway, makai of Kealakekua Village, Halekii, Keekee, North and South Kona, Hawaii. The Commission voted to recommend approval of the Change of Zone to the County Council subject to the following conditions: AOO536 EXHIBIT D + E Exhibit D Mr. Richard Frye, Project Manager November 5, 1993 Page 2 A. The applicant, successors or assigns shall be responsible for complying with all of the stated conditions of approval. B. The applicant shall indemnify and hold the County of Hawaii harmless from and against any loss, liability, claim or demand for the property damage, personal injury or death arising out of any act or omission of the applicant, its successors or assigns, officers, employees, contractors and agents under this ordinance or relating to- or connected with the approval of the ordinance. C. The effective date of the rezoning shall be upon: (1) the execution of an agreement, meeting with the approval of the Water Commission of the County of Hawaii, to assign water commitment rights in the Kealakekua Source Agreement to the current landowners of the subject properties within one-hundred-eighty (180) days from the effective date of this ordinance; provided that a maximum ninety (90) day extension may be granted by the Planning Director with reasonable and sufficient justification; and (2) the acceptance by- the Department of Water Supply of the required water commitment J payment in accordance with its "water Commitment Policy" within one-hundred-eighty (180) days from the effective date of this ordinance. D. Subdivision plans for any portion of the agricultural-zoned area within the project site shall be submitted to the Planning Department and Final . Subdivision Approval secured within five (5) ears from the effective date of this ordinance as determined in Condition C. E. A wastewater disposal system shall constructed in a manner meeting with the approval of. the State Department of Health and/or the Department of Public Works, whichever is applicable. F. All electrical and communication utilities and systems within the project site shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site. • AOO56 F Exhibit D Mr. Richard Frye, Project Manager November 5, 1993 Page 3 G. A Flood Study of the project site shall be submitted to the Planning Department in conjunction with plans submitted for subdivision review for any portion of the Agricultural-zoned area within the project site. Drainage improvements shall be constructed in a manner { meeting with the approval of the Department of Public Works, prior to the issuance of Final Subdivision Approval for the residential-agricultural development. N. An archaeological mitigation and interpretation plan shall be prepared and submitted for approval bythe Planning Director, in consultation with the Deartment of Land and Natural Resources-Historic Preservation Division and Hawaiian community organizations, prior to submitting plans for subdivision review. The Plan shall consist of three subplans; (1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim protection/preservation plan for the sites to undergo preservation, and (3) an interpretation plan which shall include buffer zones, signage and long-range preservation concerns which may be submitted at a later date. Approved mitigation measures shall be implemented prior to or in conjunction with any land J alterations within the project area. I. Should any unidentified sites or remains such as artifacts, shell, bone, or charcoal deposits, human burials, rock or coral alignments, pavings or walls be encountered, work in the immediate area shall cease and the Planning Director shall be immediately notified. [ Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken. J. A solid waste management plan shall be prepared meeting with the approval of the Department of Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the proposed development. Approved recommendations and mitigation measures shall be implemented at a time and in a manner meeting with the approval of the Department of Public Works. A 0 0 5 6 Exhibit D Mr. Richard Frye, Project Manager November 5, 1993 Page 4 K. Access(es) to the project site shall be constructed in a manner meeting with the approval of the Departments of Transportation-Highways Division and/or Public Works, whichever is applicable, for the following roadway improvements which shall be completed prior to the issuance of Final Subdivision Approval for any portion of the residential-agricultural subdivision within the project site: (1) the channelization and signalization of the project site's Mamalahoa Highway-Haleki'i Street intersection; (2) the construction of' the Mamalahoa Highway HyPass, consisting of two -lanes with sufficient right-of-way to accommodate its expansion to four lanes, along its general alignment as shown in Pigure 20 of the villages at Hokukano Final Environmental Impact Statement ( dated September 1993; (3) the construction of ( ) channelization improvements to the Bypass at its intersections with Kuakini Highway, Mamalahoa Highway/Napo'opo'o Road and Haleki'i Street; and (4) the construction of the project's main access roadway extension from Haleki'i Street along the general alignment as reflected in Figure 4 of the FEIS with provisions for a stub-out along the project site's northern boundary to accommodate its future connection Li with the Alii Highway. L. Infrastructural improvements as required under Conditions E, C and K shall not prohibit the Applicant from participating in a Development Agreement or any other agreement together with the appropriate bond, surety or other security deemed acceptable by the Planning Director, appropriate agencies or the County l., Council, whichever• is applicable, to ensure the provision of necessary infrastructural improvements to support the proposed development in a timely manner. M. The Applicant shall participate in the funding and construction of any regional roadway improvements as • may be required by the State Department of Transportation, provided that any costs borne by the applicant shall be credited and limited to the amount of its fair share contribution for regional road and traffic impacts, as required in Conditions K and N. N. The Applicant shall pay its fair share contribution to address potential regional impacts of the project with respect to park, fire, police, solid waste disposal facilities, sewer and roads. The fair share iOO569 Exhibit D 1 Mr. Richard Frye, Project Manager November 5, 1993 Page 5 ' contribution shall be initially based on the representations contained within the change of zone application and may be increased or reduced ll proportionally if the residential-agricultural lot counts are adjusted. A pro rata portion of the contribution, based upon the density of the land affected, shall become due and payable, at the discretion of the Planning Director, in the event the Applicant conveys an ownership, leasehold, or 1 controlling development interest in the land prior to receiving its subdivision approval of any portion of the agricultural-zoned area within the project site. Otherwise, said contribution shall be satisfied in I conjunction with the receipt of Final Subdivision Approval of the affected land. The fair share contribution for each residential-agricultural lot shall be based on a maximum density for each lot as I ' determined by the applicant with the concurrence of the Planning Director. The fair share contribution in a I form of cash, land, 'facilities, or any combination thereof shall have a maximum combined value of $ 4 , 701, 205. 74 . In lieu of paying the fair share contribution, the applicant may construct such facilities related to park, fire, police, solid waste disposal facilities, sewers and roads with the approval of the appropriate agency(ies) . The Applicant shall conform, to the best extent practicable, with the guidelines as provided within the Strategies for Energy Efficient Architecture by ' 1 Hawaiian Design and the State Model Energy Code, in the construction of dwellings within the project site. P. The Applicant shall contribute its fair share of costs { attributable to school facilities made necessary by the project, provided that the contribution of Applicant's fair share shall be paid no later than the date upon which Final Subdivision Approval is obtained for the two-hundredth and first (201st) lot of the small lot subdivision. Q. Comply with all applicable laws, rules, regulations and requirements, including those of the Department of Health, Fire, State Department of Education and the ( Department of Water Supply. A0057' 0 Exhibit D Mr. Richard Frye, Project Manager November 5, 1993 Page 6 R. Should the Council adopt a Unified Impact Fees ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance. S. An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone. The report shall address in detail the status of the development and the compliance with the conditions of a condition shall remain in effect untiloall . ofTthe t conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required, T. An extension of time for the performance of conditions withinthe ordinance, with the exception of Condition C, may be granted by the Planning Director upon the following circumstances: (1) the non-performance is the result of conditions that could . -not have been foreseen or are beyond the control of the applicant, successors or assigns, and that are not the result of their fault or negligence; of the time extension would not be contrary toathe nGeneral Plan or Zoning Code; (3) granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; (4) the time extension granted shall be for a period not to exceed the period originally granted for performance (i.e. , a condition to be performed within one year may be extended for up to one additional year) ; and (5) should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant's request to the County Council for appropriate action. Further, should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate rezoning of the area to its. original or more appropriate designation. Use Permit No. 115 is herebyissue cour3e d to construct a 27-hole golf , golf clubhouse, driving range and related improvements. Approval of the Use Permit is based on the following: In considering a Use Permit for a proposed course and re7. d improvements, Rule 7ofthe Planning golf A00571 Exhibit D Mr. Richard Frye, Project Manager NoVember 5, 1993 Page 7 Commission relating to Use Permits require that such action conform to the following guidelines: (a) The proposed use will still be consistent with the general purpose of the zoned district, the intent and purpose of this chapter, and the County General Plan; . (b) The proposed use will not be materially detrimental to the public welfare nor cause substantial, adverse impact to the community's character or to surrounding properties; (c) The proposed use will not adversely affect similar or related existing uses within the surrounding area, community or region; and (d) The prom-heed use will not- unreasonablyburden public agencies to provide roads and t�ie:e; , sewer, water, drainage, schools, police and fire protection and other related infrastructure. Non-conformance with any of the above-mentioned guidelines would require that the requested Use Permit be denied. The establishment of a 27-hole golf course and related facilities within the County's Unplanned (U) zoned district will not be inconsistent with the general purpose of that zoned district, the intent and purpose of the Zoning Code, and the General Plan, provided adequate mitigating conditions are met. The subject request will provide a form of perpetual open space, thus, maintaining the current open character of the surrounding area to the north and south along with its natural and scenic qualities. The proposed development would, therefore, be consistent with the policies of both the Recreation and Open Space elements of the General Plan which state that recreational facilities in the County shall reflect the natural, historic, and cultural character of the area, and that the recreational use should be compatible with the adjacent areas. The project site is characterized as predominantly pastureland used for cattle grazing. Located makai of the project site on the boundary of North and South Kona is the cinder cone Pu'u Ohau, or Red Hill which is a prominent feature in the middle of the property, near the coast. No improvements are presently being A00572 Exhibit D 1 Mr. Richard Frye, Project Manager November 5, 1993 Page 8 proposed within this area, which is located within the State Land Use Conservation District. Also located makai of the project site along its northwestern boundary is the historic Hokukano Village. An archaeological inventory survey of the entire Villages at Hokukano project site located evidence of features associated with the Kona Field System, primarily the rectangular walled fields formed by kua'iwi walls. Other features associated with the walled fields consist of intermittent mound concentrations, terraces and modified outcrops. The Survey located 807 structural and non-strus-tural features which were subsequently organized into 47_, .ites and site complexes, some of which Were Jr.. -ited within the golf course project site. Of this total, of these sites are recommended for 7 .sites are recommended for selective preservation, and 2r-' sites are recommended for data recovery. These findings wrre supported by limited subsurface testing conducted at nine probable and possible burial sites, one agricultural mound complex, and within two extensive lava tube systems. Fourteen sites within the project area were interpreted to be possible heiau or shrine structures, with one major structure known as "Ukanipo". Sites intended for selective preservation include the Kuakini Wall, distinguishable portions of the King's Trail or Ala Loa, the railroad bed and the ahupua'a boundary walls. Preservation is [ recommended for all confirmed burial sites, all confirmed and probable heiaus, and all major lava tubes. The Applicant intends to preserve the King's Trail or Ala Loa in its present location, with slight modifications if necessary. Possible burials, if not preserved "as is", will be treated in a manner as prescribed by the State Department of Land and Natural Resources (DLNR) -Historic Preservation ` Division. A detailed archaeological mitigation and interpretationlan P meeting with the approval of' the Planning Director in consultation with the DLNR-Historic ( Preservation Division, is recommended prior to the submittal of plans for Final Plan Approval review of the golf course or any land alteration activities. { The granting of this proposal would complement the goals of the General Plan's Recreation Element which states to "Provide a diversity of environments for active and passive pursuits" and to "Provide a wide variety of recreational opportunities . . . . " These goals will further achieved through the development ofa be program at the propose public play p golf course which will be implemented prior to commencing operations. A00573 Exhibit D • Mr. Richard Frye, Project Manager November 5, 1993 'Page 9 Golf courses are permitted uses within the State Land Use Agricultural District provided that the affected lands are not classified either "A" and "B" soils by the Land Study Bureau. The Land Study Bureau's Overall Master Productivity rating for agrictiltural use of the golf course project site is Class "D" and "E" or "Poor" and "Very Poor", respectively. Therefore, consideration of a golf course within these State land use parameters is permissible. detrimental granting eof the proposed use will not be materially to public welfare adverse impact to, the communitys character substantialbtan I( surrounding properties. The character of land use in the immediate area consists largely of pasture and vacant lands to the north and south of the golf course project site. Located makai of the project site on the boundary of North and South Kona is the cinder cone Pu'u ohau, or Red Hill which is a prominent feature in the middle of the property near the coast. Also located makai of the project site along its northwestern boundary is the historic Hokukano Village. Pu'u Ohau and Hokukano Village or located within the coastal portions of the affected properties and designated Conservation by the State Land Use Commission. Located to the east (mauka) are the Kona Scenic and Keekee Estates subdivisions and the town of Kealakekua. Approval of the proposed golf course in this particular location would expand on the open space character to the north, south and west (makai) of the project site, thereby complementing the open space character of the Conservation District along the coastal area fronting the project site as well as [ reducing urban development pressure on the nearby historic Hokukano Village. The siting of the clubhouse, driving range, parking ( areas, maintenance facility and related improvements will consider the historical, open s ace e. located within and adjacent to the ojtusite teal rduring ngeplan approval review. The Planning Department's Guidelines for Golf Course Development .will be utilized to assure that adjacent properties will not be adversely affected by direct play on the golf course (i.e. errant golf balls) . In addition, the central locationof the clubhouse and its related facilities will take advantage of the landscaping . elements within the golf course to mitigate any adverse visual impacts to surrounding properties as well as from coastal areas. Due consideration by the Applicant in the siting, height, bulk, color schemes, and landscaping of golf A00574 Exhibit D Mr. Richard Frye, Project oject Manager November 5, 1993 Page 10 course-related structures will be required to mitigate any adverse noise and visual impacts. The granting of the proposed use will not adversely affect similar or related existing uses within the surrounding area, community, or region'. Kona Country Club, a resort golf course located in Keauhou, is the only existing course in the immediate region. The Kona County Club golf course is oriented for resort and public play, Y while the proposed golf course will be oriented toward private membership play. Therefore, it is not anticipated that this approval would affect the operations Country Club. Located approximately p of the Kona of the project site in ohihaleisthe proposed edto the i Golfoh Course, which received the Planning Commission's' ri 1992.. While the proposedapproval in as a private membership course, itlisf Canticipated ourse is sthat athe d r distance of these project sites from one another would assist to negate any adverse affect to the operation of either golf courses. All essential utilities and services required for the development of a golf course and related facilities are or will be made available. Conditions of approval relative to the provision of such services are being proposed. Primary access to the golf course and clubhouse facilities will be provided through an extension of Haleki'i street. • . Street, which has a pavement width of approximatelyH34 fefe i 34 with gutters and sidewalks within an 8o-foot wide et right-of-way. Haleki'i Street is currently channelized as a "T" intersection with separate left and right turn lanes at its intersection with the Mamalahoa Highway. Impact Study prepared bythe Applicant foundA trafeic the traffic signal warrant or thipintersection hast been marginally met based on existing traffic volumes. Therefore, it is recommended that signalization of this [ intersection and its attendant improvements bei rov prior to commencing operations at the cs TThe ge. General Plan Facilities Map delineates this Haleki'iStreet 1 extension as a major arterial in a makai, then north, direction to its eventual connection to the proposed Alii Highway Extension. This approval is also conditioned upon the extension and construction of this Alii Highway-Haleki'i Street extension along its general mauka-makai a lishown on the General Plan Facilities Map in accordancenwitas h county dedicable standards meeting with the requirements of the Department of Public Works, concurrently with the golf course development. No golf cart paths shall gain access 005 Exhibit D Mr. Richard Frye, Project Manager November S, 1993 Page 11 across the this extension. Further, the Alii Drive-Haleki' i Street extension shall be open to the public or may be dedicated to the county. To eliminate impacts through the possible future development of residential lots along the Alii Drive-Haleki'i Street extension, no direct access shall ( be permitted from lots adjoining this roadway. Main access to any residential lots shall be from interior roadway systems. The Department of water Supply has issued the Applicant 499 water commitments, which is sufficient to support the golf clubhouse activities. A water assignment agreement and commitment payment will be required from the Applicant prior to the submittal of golf' course plans for Plan Approval review. An "Evaluation of Water Resources for Hokukano Project" was conducted by the Applicant which found that for general demand planning purposes, the proposed golf course would approximately 900, 000 gallons of water per day for irrigation purposes. The Applicant has drilled an irrigation well within the project site to explore the use of brackish water to supplement its golf course irrigation needs. The pilot irrigation well indicated promising results for its possible use as albrackish water source for irrigation purposes. In addition, the provision of on-site retention basins and storage reservoirs within the proposed golf course will provide another supplemental source of irrigation water through the use of excess runoff. A condition of approval will require the Applicant to establish an irrigation water source of sufficient quantity and quality to support the total irrigation needs of the proposed golf course, prior to the commencement of operations at the golf course. All other essential utilities and services are or will be made available to support the proposed golf course, golf clubhouse, driving range and related improvements. Approval of the Use Permit is subject to the following conditions: 1. The applicant, successors or assigns shall comply with all of the stated conditions of approval . 2. The applicant shall indemnifyand hold Hawaii harmless from and aganst any loss, liability, claim or demand for the property damage, personal injury or death arising out of any act or omission of the applicant, its successors or assigns, officers, employees, contractors and agents under this permit or AOO5 Exhibit D • Mr. Richard Frye, Project Manager November 5, 1993 Page 12 • relating to or connected with the approvalof this permit. 3 . The Applicant shall provide assurance(s) satisfactory to the Planning Director, upon consultation with the Department of Land 'and Natural Resources-Commission on Water Resource Management and the Department of Health, that a water source(s) of sufficient quality and quantity to support the total irrigation needs of the golf course be established prior to the issuance of a certificate of' occupancy or opening of the golf course, whichever occurs first. 4 . Final Plan Approval for the proposed golf course and related improvements shall be secured from the Planning Director. In the design and review of any improvements, noise and visual impacts shall be minimized through appropriate siting, height, bulk, color schemes, and landscaping. The Planning Director shall determine the related improvements and accessory uses to the golf course not inconsistent with the applicable provisions of the Zoning Code at the time of plan approval review. 5. Construction of the golf course and related improvements shall be completed within five (5) years from the date of receipt of Final Plan Approval. 6. A detailed drainage study shall be prepared by the applicant for review and approval by the Department of Public Works prior to submittal of plans for Plan i Approval review of the golf course. The Study shall take into consideration the tile drainage system, retention basins and "Reduced Turf" design to be incorporated within the golf course. A drainage system shall be installed meeting with the approval of the Department of Public Works, prior to issuance of a certificate of occupancy or golf course opening, whichever occurs first. • 7. In the design of the golf course, the County of Hawaii Planning Department's Guidelines for Golf Course Design (November 1989, as amended) shall be utilized. The Planning Director shall determine appropriate setback requirements ( i .e. building and property line) at the time of plan approval review. Easements for golf course purposes over and across abutting lots, either AOO5 rsi Exhibit D Mr. Richard Frye, Project Manager November 5, 1993 Page 13 existing or proposed, shall not be permissible, except ( as may be approved by the Planning Director.. 1► 8. The Alii Drive-Haleki' i Street extension shall be constructed as an arterial along its general mauka-makai alignment as shown on the General Plan Facilities Map to County dedicable standards, meeting with the approval of the County Department of Public Works. The mauka-makai alignment of Alii Drive-Haleki'i Street shall be installed prior to g issuance of a certificate of occupancy or golf course opening, whichever occurs first. The Alii Drive-Haleki'i Street extension shall allow for perpetual public use by easement or be dedicated to the county. No golf cart path shall be permitted to cross over the Alli Drive-Haleki' i Street extension, except as may be approved by the Planning Director and Chief Engineer. Furthermore, direct access from future residential lots adjoining this alignment will not be permitted. 9. Intersection improvements at the Mamalahoa Highway-Haleki' i Street intersection, including traffic signals and channelization, shall be installed in a manner meeting with the approval of the State Department of Transportation and the County Department of Public Works, prior to issuance of a certificate of occupancy or golf course opening, whichever occurs first. 10. An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division and Hawaiian community organizations, prior to submitting plans for plan approval review. The Plan shall consist of three subplans; (1) an archaeological data recovery plan for the sites to undergo data [ recovery, (2) a detailed interim protection/preservation plan for the sites to undergo preservation, and (3) an interpretation plan which shall include buffer zones, signage, and long-range preservation concerns which may be submitted at a later date. Approved mitigation measures shall be implemented prior to or in conjunction with any land alteration activity within the project area. The Plan shall also include a detailed map of known lava tube/cave systems located within the project site and L. AOO5 Exhibit D Mr. Richard Frye, Project Manager November 5, 1993 Page 14 • mitigative measures to ensure that the golf course and related drainage systems do not impact these cave systems. 11. Should any unanticipated archaeological sites or features be uncovered duringland ion activities, work within the affectedeareatshall immediately cease and the Planning Director immediately notified. Work within the affected area shall not resume until clearance is obtained from the Planning Director. 12. The use of pesticides and herbicides in conjunction with all phases ofoperation shall conform with the I applicable regulations of appro riate agencies. P governmental 13 . During construction, measures shall be taken to minimize the potential of both fugitive dust and runoff sedimentation. Such measures shall be in compliance with construction industry standards and practices ( utilized during construction projects of the State of Hawaii. 14 . Prior to construction, the applicant shall demonstrate to the satisfaction of the Planning Director that all proposed off-site construction material such as topsoil or sand are being supplied from an approved quarry or resource site. 15. A program for public play at the proposed golf course shall be developed meeting with the approval of the Planning Director, eissuance certificate of occupancy or the opening of rthe • course, whichever occurs first. The Program shall include, but not be limited to, the provision of play, at kama•aina rates, at least one (1) da rublic month. y per 16. The Applicant shall establish a housing and which shall be submitted for for review and approval of the Planning Director and Housing Agency together with the submittal of plans for plan a of the golf course and clubhouse. The program shallal l include provisions for on-site or off-site housing for the employees at a ratio to be determined by a study of surrounding housing opportunities and employee needs. The ratio shall be no less than 10% and no more than • i_ . A00 Exhibit D • Mr, Richard Frye, Project Manager November 5, 1993 Page 15 50% of the number of employees. The program may also include consideration for other alternatives such as { rental housing subsidies or housing allowances. The approval of the program shall be secured prior to the issuance of a certificate of occupancy with the golf course. 17 . A job training program for the operating phase of the golf course and golf clubhouse shall be developed and submitted to the Planning Director for review and approval prior to the issuance of a certificate of occupancy or opening of the golf course, whichever (( occurs first. 18. Comply with all other applicable laws, rules, regulations and requirements, including those of the Departments of Health and Public Works. 19. An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the permit. The report shall include, but not be limited to, the status of the development and to what extent the conditions of approval are being complied with. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required. 20. An initial extension of fortime the performance of conditions within the permit may be _granted by the Planning Director upon the following circumstances: a) the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, - and that are not the result of their fault or negligence; b) the granting of the time extension would not be contrary to the general plan or zoning code; c) granting of the time extension would not be contrary to the original reasons for the granting of the permit; and d) the time extension granted shall be for a period not to exceed the period originally granted for performance l_ - (i.e. , a condition to be performed within one year may be extended for up to one additional year) . Further, should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate procedures to revoke the permit. 0.0560 Exhibit D Mr. Richard Frye,Y Project Manager November 5, 1993 Page 16 Special Management Area (SMA) Use Permit No. 345 to construct a 27-hole golf course, drivingrange, herebyissued g shoreline access and related improvements. Publlicic fApproval of the Special Management Area S following. ( MA) Use Permit is based 1The purpose of Chapter 205-A, Hawaiiev and Rule 9, Special Management Area Rules andi�Regulawhere laharutes, the County of Hawaii is to cand, eres of [ ' ' possible, to restore the naturalrresourcesof the coastal zone areas. Therefore, special controls on within an area along the shoreline are topment permanent loss of valuable resources and the foreclosure of management options. One of thfor approving 'a deveis thatiopment within the Special Managemente criteria Area T with the General Plan and ZoningjCode. Thetconstcons ructionn portions of a proposed 27-hole golf course, driving range, public access improvement and other related improvements ( within the Unplanned (U) zoned district will not be ! inconsistent with the general and the General Plan, provided padequateurposefmitigatingg Code, conditions are met. 4- The subject 3 request will provide a form of per open space, thus, maintaining the current open characterlof l the surrounding area to the north, south and west (makai) along with its natural and scenic development would, therefore, be consistent�with etheoposed policies of the Recreation and Open Space elements of the General Plan which state that recreational facilities in the County shall reflect the natural, and character of the area, and that the lrecreationalcuse ushould be compatible with the adjacent areas. characterized as predominantly pasturelandeusedjforect cattle site is grazing. Located makai of the project site on the boundar of North and South Kona is the cinder cone Pu'u Ohau, or Red Hill which is a prominent feature in the middle of the y being property near the coast. No improvements are proposed within these areas, which are locatedtwithin the State Land Use Conservation District. Also located makai of the project site along its northwestern the historic Hokukano Village. The l boundarycouseis will not encroach upon lands located pmakaieofgthe projectroree site within the State Land Use Conservation District. A archaeological inventory survey of the entire Villages at A00581 Exhibit D 1 Mr. Richard Frye, Project Manager November 5, 1993 Page 17 - Nokukano project site recommended that of the 473 site and site complexes located, 179 are recommended for preservation, of which 17 are recommended for selective preservation, and 289 sites are recommended for data recovery. With the approval of an archaeological mitigation and interpretation plan by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division, archaeological features will be incorporated within the golf course project site through historic parks, interpretive programs and an extensive pedestrian trail system. According to plans, an internal roadway within the northern portion of the project site will provide a public access roadway and parking area in the vicinity of the proposed 8th and 9th holes of the golf course. It is recommended that the Applicant develop and implement a comprehensive coastal public access plan for the review and approval of the Planning Director. With the approval and implementation of the comprehensive coastal access plan and the establishment of the public access area ( within the Conservation District, the proposal would not 1t have any adverse effect on public access to the shoreline and would complement the goals of the General. Plan's Recreation Element which states to "Provide a diversity of environments for active and passive. pursuits" and to ( "Provide a wide variety of recreational opportunities . . . . " i • Another criteria in reviewing an SMA Use Permit application is that "The development will not have any significant adverse environmental or ecological effect, except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interest. Such adverse effect shall include, but not limited to, the potential cumulative impact I of individual developments, each of which taken in itself might not have a substantial adverse effect and elimination of planning options. " The proposed improvements are not 1 anticipated to create substantial adverse ecological effects to the affected area. No endangered species of flora or fauna were located within the project site nor were any special habitats identified. Air emissions generated during the construction phase can be mitigated by existing construction regulations. As proposed by the Applicant, native plant species, such as the Prosopis tree, Capparis, 1 and Wili Wili tree, shall be preserved or utilized to the furthest extent possible for landscaping in and around the golf course. The use of such native plantings will be detailed in a landscaping plan to be required of the A00582 Exhibit D Mr. Richard Frye, Project Manager November 5, 1993 Page 18 Applicant. Applicable and appropriate governmental regulations will be adhered to in the application and use of { pesticides and herbicides within the project site. ( The project site is located approximately300 feet from the shoreline. Any potential runoff or dischrge which could reach ocean waters can be handled by existing construction regulations during the construction phase and on-site drainage systems during operations. Wastewater generated by the golf course clubhouse will be disposed of within a wastewater" treatment system meeting with the approval of the Department of Health. As recommended by the Department of Public Works, appropriate drainage systems will be required to accommodate runoff generated by the [ proposed improvements. To ensure that bo significant adverse impacts to coastal systems are generated, a groundwater and coastal water monitoring plan(s) will be required. The proposed golf course will not have an adverse impact to cultural or historical resources within the area. An archaeological inventory survey of the entire Villages at Hokukano project site located 473 sites and site complexes, some of which were located within the golf course project site. Of this total, 179 of these sites are recommended for Li preservation of which 17 sites are recommended for selective preservation, and 289 sites are recommended for data recovery. Sites intended for selective preservation include the Kuakini Wall, distinguishable portions of the King's Trail or Ala Loa, the railroad bed and the ahupua'a boundary Walls. Preservation is recommended for all confirmed burial sites, all confirmed and probable heiaus, and all major lava tubes. The Applicant intends to preserve the King's Trail or Ala Loa in its present location, with slight modifications if necessary. Possible burials, if not preserved "as is", will be treated in a manner as prescribed by the State Department of Land and Natural Resources (DLNR) -Historic Preservation Division. These archaeological mitigative measures were recommended by the Applicant and it's archaeological consultant. A detailed archaeological mitigation and interpretationlan meeting ing w ith the approval of the Planning Director in consultation with the DLNR-Historic Preservation Division, is recommended prior to the submittal of plans for Final Plan Approval review of the golf course or any land alteration activities. A00583 Exhibit D Mr. Richard Frye, Project Manager November 5, 1993 Page 19 Due to the open nature of the proposed golf course, viewplanes within the area will not be significantly ( affected by the proposed improvements. To further ensure that viewplanes will not be adversely impacted, all electrical and communication systems will be placed underground, with the exception of the 69 KV line from the [ Mamalahoa Highway to the proposed substation site. Approval of the Special Management Area (SMA) Use Permit is subject to the following conditions: 1. The applicant, successors, or assigns shall be responsible for complying with all of the stated conditions of approval; 2 . The applicant shall indemnify and hold the County of Hawaii harmless from and against any loss, liability, claim or demand for the property damage, personal injury or death arising out of any act or omission of the applicant, its successors or assigns, officers, employees, contractors and agents under this permit or . relating to or connected with the approval of this permit. • 3. An archaeological mitigation and interpretationlan shall be prepared and submitted for approvalp the Planning Director, in consultation withtheof Land and Natural Resources-Historic Preservation . Division and Hawaiian community organizations, prior to submitting plans for plan approval review. The Plan . shall consist of three subplans; (1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim protection/preservation plan for the sites to undergo preservation, and (3) an interpretation plan which shall include buffer zones, signage, and long-range preservation concerns which may be submitted at a later date. Approved mitigation measures shall be implemented prior to or in conjunction with any land alteration activity within the project area. The Plan shall also include a detailed map of known lava tube/cave systems located within the project site and mitigative measures to ensure that the golf course and related drainage systems do not impact these cave systems. /1UU J0 Exhibit D Mr. Richard Frye, Project Manager November 5, 1993 Page 20 4 . Should any unidentified sites or remains; such as lava tubes, artifacts, shell, bone or charcoal deposits, human burials, rock . or coral alignments, pavings or wall be encountered, work in the affected area shall cease and the Planning Director immediately notified. subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that ( sufficient mitigative measures have been taken. 5. A detailed drainage study shall be prepared by the applicant for review and approval by the Department of Public Works prior to submittal of plans for PlanApproval review of the golf course. The Study shall take into consideration the tile drainage system, retention basins and "Reduced Turf" design to be incorporated within the golf course. A drainage system shall be installed meeting with the approvale Department of Public Works, issuance ofo the certificate of occupancy oprior to of a [ P Y golf course opening, whichever occurs first. 6. The use of pesticides and herbicides in conjunction with all phases of operation shall conform with the applicable regulations of appropriate governmental agencies. 7. During construction, measures shall be taken t minimize the ao sedimentation. Suchmeasureshshalltbeeinucomplst ianceoff with construction industry standards and practices utilized during construction projects of the State of Hawaii. 8. A final comprehensive public access plan, to be developed in consultation with community groups, shall be submitted to the Planning Director in conjunction with golf course plans submitted for plan approval review. The final comprehensive public access plan shall be developed in consultation with the Planning Director and the Department of Land and Natural Resources and shall include mauka-makai and lateral shoreline accesses; parking area (s) , signage, emergency response considerations, restrictions on use (if any) , provision of recreational and restroom facilities at appropriate locations, and related improvements. Within one (1) year from the date of approval of the final comprehensive public access plan by the Planning Director, the Applicant shall apply for a Conservation AOO58 i Exhibit D Mr. Richard Frye, Project Manager November 5, 1993 Page 21 District Use Permit; Special Management Area Use Permit and other applicable permits/approvals to allow for the implementation of the recommendations of the approved Plan. 9. The Alii Drive-Haleki'i Street extension shall allow for perpetual public use by easement or be dedicated to the County. 10. Areas of the affected properties located within the State Land Use Conservation District shall be set aside as public shoreline access areas in a manner consistent • with the approved final comprehensive public access plan via covenants recorded with the Bureau of Conveyances. Upon approval of the final comprehensive public access plan, draft covenants which detail the rights, obligations and privileges of the public, the County of Hawaii and the applicant, its successors or assigns shall be submitted to the Planning Director for approval . The approved covenants shall be recorded prior to the receipt of Final Plan Approval for the golf course or the subdivision of any portion of the Agricultural-zoned area within the project site, g whichever occurs first. These covenants shall be encumbrances running with the land and shall be binding on all parties and persons claiming under them. f 11. Prior to the commencement of construction of any portion of the proposed golf course development, an overall monitoring plan on the potential pollution to groundwater and coastal waters shall be submitted to the Planning Director for approval .in consultation with the Department of Health. A Golf Course Best Management Plan and Integrated Groundwater Monitoring Plan shall be component parts of this overall monitoring plan. 12. The Applicant shall prepare and submit to the Planning Director for approval a Landscaping Plan for the golf course and golf clubhouse along with plans submitted for plan approval review. The Plan shall discuss the method of preservation and/or propagation and use of native plants, such as the Prosopis tree, Capparis, and Wili Wili tree, within and around the golf course and golf clubhouse facilities. A00586 Exhibit D • Mr. Richard Frye, Project Manager November 5, 1993 Page 22 13 . All electrical and communication utilities and systems shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site. 14 . Comply with all other applicable laws, rules, regulations and requirements; 15. An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this permit. The report shall include, but not be limited to, the status of the development and to what extent the conditions of approval are being complied with. This condition shall remain in effect until all of the conditions of approval have been complied and the Planning Director acknowledges that further reports are not required; 16. An initial extension of time for the performance of conditions within this permit may be granted by the Planning Director upon the following circumstances: (a) the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, and that are not the result of their fault or negligence; (b) granting of the time extension would not be contrary to the General Plan or the Zoning code; (c) granting of the time extension would not be [ contrary to the original reasons for the granting of the permit; and (d) the time extension granted shall be for a period not to exceed the period originally .E granted for performance (i.e. , a condition to be l performed within one year may be extended for up to one additional year) . Further, should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate procedures to revoke this permit. These approval do not, however, sanction the specific plans submitted with the applications as they may be subject to change given specific code and regulatory requirements of the affected agencies. • 00587 Exhibit D Mr. Richard Frye, Project Manager November 5, 1993 Page 23 Should you have any questions, please feel free to contact Rodney Nakano of the Planning Department at 961-8288. ( Sincerely, Wilton Wong, Vice Chairman Planning Commission DSA: jdk LOceanO1.PC xc: Honorable Stephen K. Yamashiro, Mayor Planning Director PRR Hawaii, Inc. Department of Public Works Department of Water Supply County Real Property Tax Division West Hawaii Office Office of State Planning, CZM Program w/background Department of Land and Natural Resources Department of Transportation-Highways Division Department of Parks & Recreation 1,1 Fire Department Police Department Department of Health Department of Education Office of Housing and Community Development Plan Approval Section Subdivision Section A0058 1 Exhibit D JNiv vi yk Stepleco K. Yntmtshiro `� ( •- • �(oyar { i iii i '. • • candy. of tat ruin PLANNING COMMISSION 25 Aummi Stretr,Root" 109 • lilt,,,it.w*it 96720.12.52 (AOR)961-8288 Fax(808)961-9615 • [ CERTIFIED MAIL 2 416 223 850 ( September 28, 1995 ' R. T. "Dick" Frye, Project Manager 1250 Oceanside Partners 74-5620A Palani Road, Suite 200 Kailua-Kona, III 96740 Dear Mr. Frye: ticant: Oceanside 1250 dba 1250 Oceanside Partners ial Management Area Use Permit Application No. 95-3 i...ynest: To Allow Development of Portions of a 730-Lot Agricultural Subdivision and its Related Improvements TaXJ IapJ<.m 7-9-12:11 and !Ionians of 3 anti ; 8-1-4:Port iotls)C�_ The Planning Commission at its duly held public hearing on September 14, 1995, vc tes1-t approve the above-referenced application. Special Management Area Use (SMA) Permit Not 3s hereby [ issued w allow the development of portions of the proposed 400-lilt agricultural subdivision and related infrastructure improvements and facilities on approximately 110 acres of land. The application represents a portion of the approximately 1,540 acres master planned community 1:nows, as the Villages of hlokukano. The property is located makai of Mamalahoa Highway and Kealakckua Village, Ilaleki'i, Keekee, North and South Kona, Hawaii. Approval of this request is based on the following: The purpose of Chapter 205-A, Hawaii Revised Statutes. and Rule 9, Special Management Arca Rules and Regulations of the County of Hawaii Planning Commission is to [ preset ye, protect and, where possible, to restore the natural tCSouices of the coastal zone areas. Therefore, special cum ohs un development within an area along the shoreline are necessary W avoid permanent loss of valuable resources and the foreclosure of management • [ options. One of die criteria for approving a development within the Special Management Area (SMA) is that it is consistent with tate General Plan and Zoning Code. The subject area is designated for Orchards and Extensive Agricultural uses by the General Plan Land Use Pattern Allocation Guide (LUPAG) Map. The applicant's proposal to develop agricultural lots one-acre and target in size is consistent with the Genet al Plan Goals, Policies and L _ A00 b [ EXHIBIT F Exhibit D • T. "Dick" Frye, Project Manager Oceanside Partners _de 2 LUPAG Map. Such agricultural-type of development provides o residential and limited-scale agricultural activities. The project sitet has historically been ities for a mix f marginally used for cattle grazing purposes. The applicant is exploring options aimed at integrating agricultural zones on portions of the agricultural zoned lots in a manner that would allow for an efficient management operation for select crops and/or orchard uses. It is anticipated that these agricultural zones will be provided to farmers through a leasing arrangement at a nominal cost initially, with the applicant to provide the necessary infrastructural development to sustain such agricultural activity. Along with the provision of residential sites, the proposed one-acre lots can provide opportunities for gardening, hobby activities and reasonable-scaled agricultural endeavors on these marginal agricultural lands. This combination of uses will provide a balance between the agricultural potential of the project site and the residential and commercial uses located in the Kealakckua area: •The construction of approximately p( t Mately 100 agricultural lots and related farm dwellings, related • infrastructure improvements, trails, signs and landscape improvements associated with implementation of an archaeological preservation program within the Agriculture 1-acre (A-1a) zoned district will be consistent with the general purpose of the General Plan, provided adequate mitigating conditions are met. Zoning Code and the The subject request will be compatible with the proposedolf cour smaintaining the current open character of the surrounding area to golf nnorthe outhdeve(ande�estt (makai) along with its natural and scenic qualities. The proposed development would, therefore, be consistent with the policies of the Housing, Land Use Agriculture, Recreation and Open Space elements of the General Plan which state that recreational facilities in the County shall reflect the natural, historic and cultural character of the area, and that the housing, agriculture and recreational use should be compatible with the adjacent areas. Another criteria reviewing for review ing the SMA Use Permit is that, "The development will not have any significant adverse environmental or ecological effect, except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety 1 .) or compelling public interest. Such :Rivet se clTcrs shall include, but not limited ti,, the potential cumulative impact of individual developments,.each of which taken in itself might 1 not have a substantial adverse effect and elimination of planning options.'" The proposed development is part.of the Villages at Flokukano master planned community. The preliminary development plan includes a 27-hole golf course, clubhouse and related facilities, a future members lodge with up to 80-units, an approximately 140 acre coastal park, open space elements and community facilities, and approximately 730 agricultural lots with associated dwelling and agricultural uses, including approximately 100 lots within the SMA. l- - The proposed development is not anticipated to have any substantial environmental or ecological effects. Surveys conducted for biological resources, rse historic and cultural resources, visual impacts, public access and recreation aspects and socio-economic impacts support this conclusion. The goals and objectives of the SMA with respect to coastal, recreational, scenic, historic and economic resources can be met with aapproval with conditions. The proposed project will not have an' adverse impact to cultural or histoirical re nurccc within the protect at ea An archaeological inventory survey of the entite A00590 Exhibit D • ' "Dick" Frye, Project Manager Oceanside Partners tnbe3 at Ilokukano project site located 408 sites and site complexes. Of this total, 161 of these sites are recommended for preservation, 17 sites are recommended for selective preservation, and 228 sites arc recommended to be available for data recovery and 2 recommended for no further study. Sites intended for selective preservation include portion of the Kuakini Wall, distinguishable portions of the King's Trail or Ala Loa, the railroad bed and the ahupua'a boundary walls. ('reservation is recommended for all confirmed burial sites, all confirmed and probable heiaus, and all major lava tubes. The applicant intends to preserve the King's Trail or Ala Loa in its present location, with some modifications, including possible breaches, as approved by the Planning Director in consultation with the State Department of I.and and Natural Resources (DLNR). Possible burials, if not preserved "as is," will be treated in a manner as prescribed by the UI.NR-[listuric Preservation Division. A detailed archaeological mitigation and interpretation plan, meeting with the approval of the Planning Department in consultation with the DLNR-Ilistoric Preservation Division, is recommended prior to the submittal of plans for subdivision review or any land alteration activities. The project site is situated east (mauka) of the Conservation District which ext along the shoreline and will be retained as a coastal park. The proposed a cads he further buffered from the shore by the proposed golf course, which was agricultural will approved by (Ise Planning Commission. Potential negative itupacts on coastal waters during site preparation and construction can be mitigated through compliance with existing •ordinances and regulations. Runoff or discharge generated by the proposed subdivision development which could reach ocean waters can be handled by on-site drainage improvements meeting with the approval of the Department of Public Works. Wastewater generated by the project will he disposed of within a wastewater treatment system meeting with the approval of the Department of Ilcalth. To further ensure that no significant adverse impacts to coastal systems are generated, a groundwater and coastal water monitoring plan(s) will be required. Vicwplancs within the area will not be significantly affected by the proposed ( improvements. The visual character of the subject arca and time areas directly mauka will be low profile, with landscaped dwellings integrated with compatible agricultural uses. The coastal area within the State Land Use Conservation )District is planned to remain primarily • as a natural open space with minimal improvements to support park activities. To further ensure that viewplanes will not be adversely impacted, all electrical and communication systems will be placed underground with the exception of the 69 KV transmission line front the Ivfantalahoa llighway to the proposed substation site. Based on the foregoing, the proposed construction of portions of an agricultural subdivision and other related improvements will not have a substantial adverse impact on the surrounding area, nor will its approval be contrary to the objectives and policies of Chapter 205-A, IIRS, relating to Coastal Zone Management and Rule 9 of the Planning Commission relating to the Special Management Area. Approval of this request is subject to the following conditions: !. The applicant, successors oe assigns shall be responsible for complying with all of the stated conditions of.approval; A00591 Exhibit D " T'• "Dick" Frye, Project Manager -0 Oceanside Partners be 4 2. The applicant shall indemnify and hold the County of Hawaii harmless from and against any loss, liability, claim or demand for (he property damage, personal injury or death arising out of any act or omission of the applicant, its successors or assigns, • officers, employees, contractors and agents under this permit or relating to or connected with the approval of this permit. 3. The effective date of this Special Management Area Use Permit shall be the effective date of the Change of Zone. 4. An archaeological mitigation and interpretation plan shall be prepared and submitted • for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division and I tawaiian coma tiiiity organizations, prior to submitting plans for plan approval review. The Plan shall consist of three subplans; (A) an archaeological data recovery planfor the sites to undergo data recovery, (U) a detailed interim protection/preservation plan for the sites to undergo preservation, and (C) an interpretation plan which shall include buffer zones, signage, and long-range preservation concerns which may be submitted at a later date. Approved mitigation measures shall be implemented prior to or in conjunction with any land alteration activity within the project area. The Plan shall also include a detailed map of known lava tube/cave s stems I c. within the project site and mitigative measures to ensure that the proposed o -(ted development does not impact these cave systems. 5. Should any unidentified sites or remains, Such as lava bo charcoal deposits, human burials, rock or coral alignments,s , pavings ores, artifacts, Sv�t allell, be tic or encountered, work in the affected area shall cease, and the Planning Director immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken. 6. A Natural Resources Management Plan shall be submitted for review and approval by die Planning Director, in consultation with the Department 01 Land and Natural ( Resources, prior to securing Final Subdivision Approval. 7. A detailed drainage study shall be prepared by the applicant for review and approval by the Department of Public Works prior to submittal of plans for Subdivision Approval review of the agricultural subdivision. A drainage system shall be installed meeting with the approval of the Department of Public Works, prior to securing Final ( Subdivision Approval. 8. Use of pesticides and herbicides in conjunction with all phases of operation shall conform with the applicable regulations of the appropriate government a gem i - A00592 Exhibit D • • • R. T. "Dick" Frye, Project Manager .') Oceanside Partners . 5 9. During construction, measures ill be. ':;ken to minimize the potential of both fugitive dust and runoff sedim tion. Such measures shall be in compliance with construction industry standards .d practices Utilized during Construction projects of - the State of I lawaii. 10. Prior to Final Subdivision Approval of any lands within the project site, an overall monitoring Flan on the potential pollution of groundwater and coastal waters shall be submitted to the Planning Director for approval in consultation with the State Department of!kalif:. • 11. All electrical and communication utilities and systems within the project site shall be - placed underground, with the exception of(lie main 69 KV transmission line from the Matnalahoa Highway to the proposed electrical substation Site. 12. A wastewater disposal system shall be constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works whichever is applicable. 13. An annual progress report shall be submitted to the Planningn ior teach anniversary date of the approval of this permit. The report hall include,irector but not be limited to, the status of the development and to what extent the conditions of approval are being complied with. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports arc not required. An extension of time for the performance of conditions within this permit may be granted by the Planning Director upon (he following circumstances: (A) the non perlormarnce is die result of conditions that could not have been foreseen or are beyond the control of(lie :applicant, Successors or assigns, and that are not the result of their fault or negligence; (1.1) granting of the time extension would not be contrary to the General Plan or Zoning Code; (C) granting of the time extension would not be contrary to the original reasons for the granting of this permit; (1)) the time extension granted shall be for a pet iod not to exceed the period originally granted for.performance (i.e., a condition to be performed within one year may be extended for up to one additional year). Should any of the conditions not be tact or substantially complied with in a timely fashion, the Director shall initiate procedures to revoke (his permit. This approval does not, however, sanction:the specific plans submitted with the application as the may be subject to change given specific code and regulatory requirements of the affected agencies. A00593 Exhibit D ,t. T. "Dick' Fryc, Projcct Managcr 1250 Oceanside Panncrs Page 6 Should you have any questions. please fed free to contact Alice Kawaha or Susan Gagorik of the Planning Depanment at 961-8288. Sincerely, e,uctcr_e • Edward E. Crook, Chairman Planning Commission • AK:syw f k LOccan0l.PC xc: Honorahlc Stephen K. Yamashiro, Mayor [ Planning Director Department of Public Works Department of Water Supply County Real Property Tax Division Wes( Hawaii Office Office of State Planning, CZM Program w/background ( Department of Land and Natural Resources, Historic Preservation Division Plan Approval Scction Mr. James Leonard/PDR Hawaii Department of Hcalth � .e L . A0059 Exhibit D COUNTY OF HAWAII STATE OF HAWAII BILL NO. 373 ORDINANCE NO. 9 7 36 AN ORDINANCE AMENDING SECTION 25-88 (SOUTH KONA ZONE MAP), ARTICLE 3, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE, BY CHANGING THE DISTRICT CLASSIFICATION FROM AGRICULTURAL(A-la)TO RESORT(V-6.0) AT KEEKEE 2nd, ILIKAHI, KANAKAU 1st and 2nd,and KALUKALU 1st,2nd and 3rd, SOUTH KONA, HAWAII, COVERED BY TAX MAP KEY 8-1-04:PORTION OF 3. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Section 25-88,Article 3, Chapter 25 (Zoning Code) of the Hawaii County Code is amended to change the district classification of property described hereinafter as follows: The district classification of the following subject area situated at Keckec 2nd, Ilikahi, Kanakau 1st and 2nd, and Kalukalu 1st, 2nd and 3rd, South Kona, Hawaii, shall be Resort (v-6.0): Beginning at the Northwesterly corner of this parcel of land at a point bearing 300° 33'20" 399.34 feet from an angle g point on the Easterly boundary of the State Land Use Conservation District, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 1,636.53 feet South and 1,386.52 feet East and running by azimuths measured clockwise from True South: Thence, for the next fifteen(15)courses following along the remainder of Grant 1745 to John Cavanah: 1. 226' 00' 604.00 feet to a point; 2. 316° 00' 319.00 feet to a point; 3. 3530 00' 80.00 feet to a point; 4. 16" 00' 290.00 feet to a point; 5. 67" 00' 275.79 feet to a:io:nt; 6. 157° 00' 50.27 feet to a point; A00595 EXHIBIT G Exhibit D 7. 67° 00' 144.00 feet to a point; 8. 337° 00' 174.00 feet to a point; 9. 247° 00' 105.36 feet to a point; 10. 337° 00' 725.39 feet to a point; I I. 89° 00' 447.00 feet to a point; 12. 157° 00' 238.00 feet to a point; 13. 146° 00' 303.00 feet to a point; 14. l91° 00' 362.00 fcct to a point; I - 15. 182° 42' 30" 255.00 feet to theint of beginning p° g g and containing ( an area of 14.854 Acres. All as shown on the map attached hereto, marked Exhibit"A" and by reference made a part hereof. SECTION 2. This change in district classification is Conditioned upon the following: g II A. The applicant, its successors or assigns shall be responsible for complying with ( all of the stated conditions of approval. l . H. The effectuation of the water commitment rights in the'Kealakekua Source [ l Agreement to the current landowners of the subject area with acceptance of the prevailing facilities charge by the Department of Water Supply of the required water commitment payment shall be in accordance with its "Water Commitment Policy" prior to the issuance of Final Plan Approval. C. Subdivision plans for any portion of the subject arca shall be submitted to the Planning Director and Final Subdivision Approval secured within five (5)years from the effective date of this ordinance. Exhibit D D. Final Plan Approval for the proposed development within the subject area shall be secured within five(5) years from the effective date of this ordinance. E. A wastewater disposal system for the subject area shall be constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works, whichever is applicable. F. All electrical and communication lines within the subject area shall be placed underground. G. A Flood Study of the subject aura shall be submitted to the Planning Director in conjunction with plans submitted for subdivision iv' iston or plan approval review, whichever occurs first, for any portion of the 14.8 acre area. Drainage improvements shall be constructed meeting with the approval of the Department of Public Works, prior to the issuance of Final Subdivision or Plan Approval for the subject area. l H. An archaeological mitigation 8 g on and interpretation plan shall be prepared and submitted for approval by the Planning Director in consultation with the Department of Land and Natural Resources-Historic Preservation Division and Hawaiian community organizations,prior to submitting plans for subdivision or plan approval review, whichever occurs first. The Plan shall consist of three subplans: (1) an archaeological data recovery plan for the sites to undergo data recovery; (2) a detailed interim protcetion/preservatjon plan for the sites to undergo preservation; and -3_ AOO59 Exhibit D (3) an interpretation plan which shall include buffer zones, signage and long-range preservation concerns which may be submitted at a later date. Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the ( subject area I. Should any unidentified sites or remains such as artifacts,shell, bone,or charcoal deposits. human burials, rock or coral alignments. pavings or walls s be encountered, work in the immediate area shall cease and the Department of Land ( and Natural Resources-Historic Preservation Division (DLNR-HPD )shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the DLNR-HPD when the DLNR-HPD finds that sufficient mitigative measures have been taken. J. A Solid Waste Management Plan shall be prepared meeting with the approval of the Department of Public Works prior to submitting plans for subdivision s on or plan approval review, whichever occurs first. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the proposed development within the subject [ area. Approved recommendations and mitigation measures shall be implemented meeting with the approval of the Department of Public Works. K. Access(es) to the subject arca shall be constructed meeting with thea rov the De PP al of partment of Public Works. The following roadway improvements between Haleki'i Street and the 14.8-acre subject arca shall be completed in conjunction with the issuance of a certificate of occupancy for any development within the subject arca: (1) tl c .hannelization and signalization of the project site's Marra,-hoa • Highway-Haleki'i Street intersection; -4- 00598 Exhibit D (2) the extension of Haleki'i Street shall be constructed as an arterial along its general mauka-makai alignment, as shown on Exhibit "B'. which phasing of improvements shall be approved by the Department of Public Works. If, before the completion and opening of the entire Mamalajtoa Highway Bypass, a portion of said bypass is completed and opened, and said portion provides a connection to Haleki'i Street,a barricade or breakaway gate meeting with the requirements of the Department of Public Works,shall be installed by the applicant as part of the required Halckj'i Street improvements. The purpose of this condition is to prevent the use of Halcki'i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and a portion of the Mamalahoa Highway g Y Bypass until the entirero osed P P Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Capiain Cook has been completed and opened foreneral public B P lit use; (3) the roadway segment g ent from the HaJek i Street extension to the subject arca fshall be constructed prior to the certificate of occupancy for any 1 development p within the 14_$ acre subject arca. Also, the M amalahoa Highway Bypass shall be constructed in its entirety between the approximate vicinity of Keauhou and Captain Cook, consisting of two lanes with sufficient right-of-way for a total of four lanes, provided further,that the section of the Mamaiahoa Highway Bypass between Keauhou and Halcki'i Street shall be completed and available for public use prior to the issuance of a certificate of occupancy of the proposed development within the subject area. L. In.fVuctural improvements as required under Conditions C, E, F, G. ., and K shall not prohibit the applicant from participating in a Development Agreement or any other agzecmeut tagethcr with the appropriate bond,surety or other security deemed acceptable by the Planning Director, appropriate agencies or the County A00599 Exhibit D Council, whichever is applicable, to ensure the provision of necessary infrastructural improvements to support the proposed development'in a timely manner. M. The applicant shall establish a program for employee housing which shall be submitted for the review and approval of the Planning Director and Housing Agency together with the submittal of plans for Plan Approval for the proposed lodge. The program shall include provisions for on-site or off-site housing for the employees of the lodge in an amount to be determined by a study of surrounding t . housing opportunities and employee needs. The program may also include consideration for other alternatives such as rental housing subsidies or housing allowances. The approval of the program shall be secured prior to the issuance of a certificate of occupancy of the lodge within the subject area. N. The applicant shall make its fair sham contribution to mitigate the potential impacts of thepo ro se p d development within the subject arca with respect to parks and recreation, fire, solid waste disposal facilities and roads. The amount of the fair share contribution shall be the sum which is the product of multiplying the,number of units proposed to be developed by the amounts allocated hereinbelow for each such unit, and shall become due and payable prior to final plan approval or final subdivision approval, whichever occurs first, for any portion of the subject area or its increments, if the subject area is developed in two or more increments, thc amount of the fair share contribution due and payable prior to final plan approval of each increment shall be a sur] calculated in the same manner according to the number of proposed units in each such increment. The fair share contribution may be in a form of cash. land, facilities, or any combination thereof acceptable to the Planning Director C- in consultation with the affected agencies. The fair share contribution shall have a maximum comb:nc.J value of$7,965.90 per resort unit. Based upon the applicant's representation of intent to develop up to 80 units, the indicated -6- A00600 Exhibit D total fair share contribution is $637,272.00. However, the total amount shall be increased or reduced in proportion with the actual number of lots/units according to the calculation and payment provisions set forth in this Condition N. The fair share contribution shall be allocated as follows: 1. 51.942.74 per resort unit for an indicated total of 5155,419.20 to the County to support park and recreational improvements and facilities; 2. 587.99 per resort unit or an indicated total of 57,039.20 w the County to support fire facilities: 3. 543.02 per resort unit for an indicated total of 53,441.60 to the County to support solid waste facilities; 4. 55.892.15 per resort unit for an indicated total of 5471,372.00 to the State or County to support road and traffic improvements. The fair share contributions described above shall be adjusted annually beginning threc.years after the effective date of the change of zone, based on the percentage change ange in the Honolulu Consumer Price Index (HCpn. In lieu of ( paying the fair share contribution, the applicant may construct and contribute land, improvements/facilities related to parks and recreation, fire, solid waste disposal facilities, and roads within the region impacted by the proposed development. subject to the approval of the Planning Director. The cost of constructing the improvements and the fair market value of land contributed required in Condition K shall be credited against the sum specified in Condition N(4) for road and traffic improvements. For purposes of administering Condition N, the fair market value of land contributed or the cost of any improvements required or made in lieu of the fair share contribution shall be - -7- 00601 Exhibit D subject to the review and approval of the Planning Director. upon consultation with the appropriate agencies. O. Comply with all applicable laws, rules, regulatiorm and requirements, including those of the Department of Health, Fire Department and the Department of Water Supply. P. Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees,conditions included herein shall be credited toward the requirements of the Unified impact Fees Ordinance. Q- An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone. The report shall address in detail the status of the development and the compliance with the conditions of approval. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that funher reports arc not required. R. An initial extension of time for the performance of conditions within the ordinance, with the exception of Condition 13, may be granted by the Planning Director upon the following circumstances: (1) The non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, and that is not the result of their fault or negligence. (2) Granting of thetime time extension would not be contrary to the General Plan or Zoning Code. '� -8- A00602 Exhibit D (3) Granting of the time extension would not be contrary to the original reasons for the granting of the change of zone. (4) The time extension granted shall be for a period not to exceed the period originally granted for performance(1.e., a condition to be performed within one year may be extended for up to one additional year). S. Should any of the conditions not be met or substantially complied within a timely fashion, the Director may initiate rezoning of the subject area to its original or more appropriate designation. - SECTION 3. In the event that any portion of this ordinance is declared invalid,such invalidity shall not affect the other parts of this ordinance. SECTION 4. This ordinance shall take effect upon its approval. INTRODUCED BY: f l � O I-MEMBER. COUNTY OF HAWAII Hilo, Hawaii • Date of Introduction: Flebruary 19, 1997 Date of 1st Reading: February 19, 3 997 • Date of 2nd Reading: Mich 7. 1997 Effective Date: l 13. 3997 APPROVED AS TO FORM AND LEGALITY 'tPUTY CORPORATION COUNSEL DATED: 3//v/f -9- A00603 Exhibit D „ ,„ LB =IR -Eli EIVRISIli W I 0 Maga fialb , NAP. tVir411- 1 ' ”4 a: ..... r.rI. Illob d ". ''' I I .".."411111r ar 1:17 4 ... d- rrr,il �rrl rri iljr�t. . a 1421/4- /- IV°6771 —II : ii dri An Slim;, ill / - i_sco• • am,i (11 i it A . A-Iw 1/11 '� A.*. A.•5w 1�, — • I1-I. [ ' 1 / . ) . v... / ,.. U 4 , . A-I. c o a a U. /....1 1 I 4 O 1.636.53 S A` '4 1.3e6-sz E AGRICULTURAL A— 1 a ) TO x RESORT (V -6,0)"1' o i Ox • . �: / AREA: 14.854 ACRES I -auu osi.ku---� A I ..\----"`-'1,.../../-....%/(1. S E A AENDMENT TO TME ZONlNO CODE_ AMENDING SECTION 25-88 (SOUTH KONA ZONE MAP) ARTICLE 3, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE. BY CHANGING THE DISTRICT CLASSIFICATION FROM AGRICULTURAL (A-10) TO RESORT (v-6.0) AT KEEKEE 2ND, IUKAHI, KANAKAU 1ST AND 2ND AND KALUKALU 1ST, 2ND AND 3RD, SOUTH KONA, HAWAII. IPREPARED BY : PLANNING DEPARTMENT T„K COUNTY OF HAWAII 6—1—a:PORTION OF EXHIBIT :4" OCl'O5ER 9. 1996. tocc.swe t tae. . as Exhitil 9)6 tili . . ; .. .. • .•_ . - • •• : 1 •-1• •••.., • .- .e. '- • . w•-: • - I• .. . .* ' • •- .--... • - ,/4" 7,- -.. •• • • • .. ••Zt.' • - J.t • 4. .. s ' • . . -) -.. .....•-...-1 . -^ -- - ‘.... .. ' I° :-.. f - - •. .• . .,,,,„I . . -. • . A : • T T -!---.": . ,• --ELK;:r .E/tcL"I-3 .'^--N . '-*:'-'---,• '---/--.-. . • ....... . s. . -. . 4 • • "1"; •• •. I -• < • • . ! • • • •i• I .: •• 1 ..:•,.:::•. ... ....: A • •• ••...0..4-4....•••:. :r •• :. • ,,i . • A . _A 4-t•-- : ...- . : . . ,.. , • •...„.4,..V.....fg 1.,••••I, •••..... , • .• ' • • ....! 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A 00 60 Exhibit D OFFICE OF THE COUNTY CLERX i County of Hawaii HI:7D =�D Hilo (' Bewail R .. . . . ops •97 ItfiP 13 HI 2 17 ROLL CAL • . . _ , CAI . : t�• _r AYES 'fit Introduced By: Bobby Jean Liet ead-Tpckl A Date Introduced; February19, 1997 Chungi X ��� t Reading: _February 19, 1997 ��� First IIIIIIIUIIIIM Published: February 28, 1997 Lei thead-Tadd ��� Rae X 111.111111111111111111 ( REMARKS: Reynolds 1113111111111111111111111111 ISantangelo x Smith IIIIIIIIIIIIIn111111 1�1111111111111 'ly1 er 11111.111111111 MIN 9 0 J I 0 Second Reading: March 7 1997 ROLL CALL VOTE [ ; viaro March 7 1997 ^Yl=S NOES 1 ABS vo- .eturned: 19 7 Mafaki X Effective. March 13 1997 Chun X 'ublished March 21, 1997 Lcithead-Todd MN l`rC=..MARK5: Ray Reynolds x ' d f Smith • x i Tyler X ! Ta on X 8 1 I 0 f 0 • i DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as 1d:rated above APPROVED AS TO F4 AND LE IT'Y: DEPUTY CORPORATION COUNSEL •..r CIL CH�t11tN1,tN COUNTY OF HAWAII _ Date 3//6/q7 ,Z.Q.,--. _ �, COUNTY CLERK Approved/ psd this 13 i /}vlU.t `�y1997. . ' . 0.1,c.L._ 'OR. COtnvn •FxAWA 1 i' HEREBY CERTIFY that above la . Bill No.: 373 (Draft 5 ) true and correct copy of the original Rcfcrr.c.: C-1474/1996/pc-27 now on file in my office. Ord Nvr i `'"" clerkExhibit D \•. 'i‘ #iik s' -' ) ti'. R 7 : . '110.r...,....„..z.._ .N..., --L., I. US ' . "N ' ' F.:7 x, . , ik, , \, -iii i 1144. .4.4coPtw ei 4, ii.P �i�'1;1�`�"� om N - ;F'161°A l 2 , , • .4,1_11,10,141, \\ i 1 a.CQ 1 , 4••\ ' ''."'Ininitk111116L \ ifiA 1 ' • 141MOULAIA ' 0 -' . * :,, eiritirootaig •tt IR 1.10.0k lis i H igelo,solvtot, 11 1. 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Se- a. k •I,, . 4. t ''. .n -• , . .. k' 1 rim , , -- r--- .• . -. ....N --- - . . ,.............: . ... ,. , - ••• •• ::, . .............. •:, :...a A , • •• .! : N. . • [ Z., .02 li Zr. 1 • • • • . . ... - '''- -_,. • LEASE AREA A 00 60 9 EXHIBIT K 1 Exhibit D 0 • • • • LAND COURT SYSTEM After Recordation Return b REGULAR SYSTEM Y Mail ( )• Pickup ( ) ACKERMAN RANCH INC. P. O. BOX 555 TG: ACCOM KEALAKEKUA, HI 96750 TGE: 881010819 ATTN: JAMES J. ACKERMAN LILY BRUtVKE TITLE OF DOCUMENT: _ MEMORANDUM OF DEVELOPMENT LEASE PARTIES TO DOCUMENT: ACKERMAN RANCH, INC. , Lessor LYLE ANDERSON, Lessee PROPERTY DESCRIPTION: LIBER/PAGE: • DOCUMENT NO. : TRANSFER CERTIFICATE OF TITLE NO(S).: EXHIBIT L Exhibit D ______ 0 (7) MEMORANDUM OF DEVELOPMENT LEASE THIS INDENTURE made this day of ( /u,(iii , 19 S� , by and between ACKERMAN RANCH, INC. , a Hawaii corporation, whose principal place of business is in Kealakekua, Hawaii and whose post office address is P.O. Box 555, Kealakekua, Hawaii 96750, hereinafter called the "Lessor", and LYLE ANDERSON, husband of Kerri Anderson, whose principal place of business and post office address is 7373 N. Scottsdale Road, Suite C226, Scottsdale, Arizona 85253, hereinafter called the "Lessee". WITNESSETH: That in consideration of their mutual covenants and agreements, the Lessor does hereby demise and lease unto the Lessee, and the Lessee does hereby accept and lease from the Lessor the property described in Exhibit "A" ' attached hereto (herein the "Property"); 1_ TO HAVE AND TO HOLD the same for the term and upon the rents, covenants, agreements and conditions contained in that certain unrecorded Development Lease between the parties dated as of July 28, 1989, all of the provisions of which are incorporated by reference. IThis Memorandum of Lease is executed for the purpose of giving notice of the existence of the Development Lease. Reference is made to the Development Lease, as it may now or hereafter be amended, for the full I description of the rights and duties of the Lessor and the Lessee. This Memorandum of Development Lease shall not affect the terms and conditions of the Development Lease, as now or hereafter amended, or the interpretation of the rights and duties of Lessor and Lessee under the Development Lease. I 1 The Development Lease further rights, grants to the Lessee the following g privileges and powers: A. DEVELOPMENT OF PROPERTY ` 1 (1) Permits and Governmental Approvals. The Lessee may file all applications and take all actions necessary or desirable to obtain reclassification under the state land use law and changes in or variances of county master and development plans and zoning for all purposes and uses permitted the Lessee under this lease; seek subdivision and consolidation approvals and permits required for the initial subdivision of the Property and subsequent subdivision and development of the Premises; and seek grading, building and other permits necessary for the demolition of existing improvements and the construction of new improvements on the Premises. The Lessor will join into, cooperate with, support and assist the Lessee with all applications for such reclassifications, changes, variances, zoning, subdivisions and permits provided that the Lessee pays all costs as described above. The Lessee shall not be required to 'pay any money to or for the Lessor to obtain the Lessor's cooperation. If and when requested by the Lessee, the Lessor shall execute all applications, consents or other such forms or instruments necessary or desirable to accomplish any of the aforesaid, including, without limitation, obtaining governmental approvals or permits. I A00611 -2- Exhibit D (2) Dedications by the Lessor. From time to time during the development and subdivision of the Premises and upon receipt of written request from the Lessee, the Lessor will, without the payment of additional compensation, dedicate from the Premises such streets, parks and other improvements for public or private use as reasonably designated by the Lessee in connection with the development of the Premises, convey portions of the Premises to such public utility companies, governmental agencies or improvement districts as the Lessee shall reasonably designate, including without limitation the well site within a portion of the Property described in Exhibit A, and grant any easements which the Lessee reasonably deems necessary for the respective services. The Lessor shall not encumber its interest in the land or this lease in a manner which shall interfere with such dedication. (3) Power of Attorney. The Lessor irrevocably, for the term of the lease, makes and appoints the Lessee (and his successors and assigns) his attorney-in-fact to do and accomplish for and on behalf of the Lessor the following: (a) In order to facilitate the applications, actions and approvals described in Paragraph A(1) above to sign and deliver any document requiring the Lessor's signature that is related to matters before the Hawaii County Planning Commission, the State Land Use Commission, the Real Estate Commission of the State of Hawaii and any successor to such agencies or other administrative agency from which approvals or permits are required for land use changes, zoning, subdivision or development of the Premises, provided that all plans are in accordance with the uses permitted in Paragraph B below; (b) In order to facilitate the actions described in Paragraph C(1) below, to join in, sign and deliver the declarations, bylaws and I other instruments and amendments thereto and to sign and deliver apartment leases to the extent the Lessor is required to do so by the provisions of the Development Lease; and (c) In order to facilitate the execution and delivery of the covenants, conditions and restrictions described in Paragraph C(2), to sign and deliver the documents containing such covenants, f s conditions and restrictions. (d) The power provided for in (b) and (c) above shall be exercised only after the intended action has been submitted in writing for review by the Lessor and has been approved by the Lessor in writing or the Lessor has failed to respond either approving or disapproving the proposed action within 20 days of receiving the submittal; provided, however, that no third person shall need to confirm that such approval was obtained in order to rely on an exercise of the power by the Lessee. If requested by the Lessee, the Lessor deliver separate, executed limited powers of attorney successors containing�t a shallssame powers and authority described above. (_. 06 2 -3- Exhibit D n 0 B. USE OF THE PREMISES (1) Specific Use Allowed. The Premises shall be occupied and used by the Lessee for grazing, agriculture and any uses consistent with the "Urban" State Land Use Classification and the Hawaii County Alternate Urban Expansion designations, including residential and multi-family residential uses, private clubs, resorts, commercial uses, public or private support facilities, golf course, parks and all other similar urban uses. C. CONDOMINIUM DEVELOPMENT, CONDITIONS, COVENANTS AND RESTRICTIONS (1) Submission to Condominium Property Regime. If requested by the Lessee, the Lessor will join into a declaration of condominium property regime ("declaration"), bylaws and other instruments required by law to subject such 1 Tracts as specified by the Lessee to the Condominium Property Act, Chapter 514A, Hawaii Revised Statutes, or any successor law, in order to establish a [ , horizontal property regime for any of the uses permitted under this lease. The Lessor agrees to assent to amendments of the declaration and bylaws of the project and the apartment lease requested by the Lessee, including, without limitation, requests made in order to comply with Law or to incorporate changes which are reasonably required by a mortgagee under a loan commitment to finance the construction of improvements or the purchase of apartments, provided amendments required by mortgagees do not substantially and adversely (( affect the Lessor's interest under this lease or any replacement lease, or in the Premises. With respect to apartments for which no apartment lease has been issued, the Lessee shall be deemed to be the owner of the apartments for all purposes of the declaration and bylaws and shall have all rights, privileges and obligations of an owner, including membership and vote in the association. Apartment leases may either be direct leases from the Lessor or ii subleases under this lease. (2) Covenants and PUDRestrictions; . D. time The Lessor will also, from time to join with the Lessee in submitting Tracts or the Premises to covenants, conditions and restrictions not inconsistent with the Development Lease which provide for the development of the area in an orderly aesthetically and s helically pleasing manner and for the maintenance of common areas by a community association or provide for development of portions of the area as planned unit developments. In order to facilitate the execution and delivery of such covenants, conditions and restrictions, the Lessor will irrevocably appoint the Lessee as its attorney-in-fact to sign and deliver such documents containing any such covenants, conditions and restrictions. D. TRANSFERS [ (1) Assignment and Subletting. The Lessee may assi or su with possession of all or anygTl blet or part part of the Premises without the prior written consent of the Lessor, provided, however that (i) no assignment or sublease of the portion of the Property to be surrendered to the Lessor upon Initial Subdivision (as defined in the Development Lease) shall be made, and assignment (ii) no shall be permitted during the initial five years of the term without the Lessor's prior written consent except an assignment to an Affiliate of the Lessee or a partnership in which the Lessee or his Affiliate A 00613 -4- Exhibit D ___ fl 0 is a general partner. Upon any assignment or sublease to an Affiliate or Third-Party, a true copy of the assignment or sublease shall be promptly delivered to the Lessor. Upon an assignment of this lease to a Person whose net worth and financial condition is substantial given the nature and the extent of the obligations to be assumed by the assignee, the Lessor shall release the Lessee from all further liability under the lease with respect to the portion assigned. (2) Partial Assignments. The Lessee may assign the lease with respect to a Tract or Tracts on the same conditions as are stated in Paragraph D(1), provided that (i) if the Tract is not a Developed Tract, the Minimum Annual Rent under the partial assignment shall be in the proportion that the area of the Tract or Tracts so assigned bears to the area of Premises immediately prior to assignment, and (ii) if the Tract is a Developed Tract at the time of assignment, the rent shall be determined in accordance with the Development Lease. i .(3) Consent to Mortgage.e !!! R R The Lessee may from time to time without the consent of the Lessor mortgage this lease to any lender as mortgagee, or become the beneficiary of carryback financing liens with respect to the I( ' leasehold interest in connection with assignments of all or portions of this lease. i (4) Notices. After receipt of an executed copy of a mortgage of the lease, the Lessor shall send the mortgagee a copy of any notice sent by the Lessor to the Lessee pursuant to this lease. I (5) Enforcement of Mortgage. A mortgagee of this lease may enforce its mortgage and acquire title to the leasehold estate in any lawful way, and pending foreclosure of the mortgage (or pending sale of the lease in lieu of ( Foreforeclosure of the mortgage), may take possession of and rent the Premises. closure Upon foreclosure of the mortgage or assignment in lieu of mortgagee may, without consent of the Lessor, sell and assign thd estate by assignment in which the assignee8y assume the leaseholdagree observe and perform all the covenants oheslesseexunderlthis lease,l and esuch assignee may make a purchase money mortgage of this lease to the mortgagee or any other Person provided that a true copy of the executed assignment and any mortgage shall be delivered promptly to the Lessor. The mortgagee or any ; tenant of the mortgagee pending foreclosure shall be liable to perform the obligations imposed on the lessee by this lease only during the period such Person has possession or ownership of the leasehold estate. Nothing contained in the mortgage shall release or be deemed to relieve the Lessee from the full and faithful observance and performance of any covenant and condition contained in the lease and on the Lessee's part to be observed and performed or from any liability for the nonobservance or nonperformance of such covenants or conditions nor a waiver of any rights of the Lessor under the lease. Should there be any conflict between the provisions of this lease and of a mortgage, the former shall control except as hereinabove set forth. 1 rig (6) Protection of Mortgagee. The Lessor will not exercise the Lessor's ht to terminate the lease with respect to all or any portion of the Premises because of any default by the Lessee under the lease if the mortgagee A00614 L -5- Exhibit D _____ n 0 or its assigns, within one hundred twenty days after receipt of written notice from the Lessor of its intention to terminate the lease for any such cause, shall cure such default if the default consists of a failure to make any payments required under the lease. Notwithstanding anything to the contrary in this lease, whenever the leasehold interest is encumbered by a mortgage or deed of trust, this lease shall not be subject to termination with respect to the entire Premises or any portion of the Premises for any default that does not consist of a failure to make any payments required under the lease, but the Lessor shall continue to have its remedies under the lease as well as the remedy of injunction when irreparable harm is threatened. Upon foreclosure sale of this lease or assignment in lieu of foreclosure, the time for performance of any obligation of the Lessee then in default not consisting of the failure to pay money shall be extended by the time reasonably necessary to complete such performance with due diligence. The ownership by or for the l same Person of both the fee and leasehold estates in the Premises shall not effect the merger of those estates without the prior written consent of any mortgagee affected by the merger. I .a (7) Lessee's Bankruptcy. If a bankruptcy proceeding is commenced by or against the Lessee, the mortgagee shall have the option and the Lessor shall l recognize the mortgagee's right, within the statutory period, to obtain or l cause the Lessee or the trustee in bankruptcy to obtain (i) an abandonment of the leasehold estate by the Lessee or the trustee in bankruptcy pursuant to ithe provisions of the Bankruptcy Code,_ or any successor law having similar effect, or (ii) an assumption of the lease pursuant to the provisions of the Bankruptcy Code, or any successor law having similar effect. The Lessor I _ agrees to extend the limitation period for the trustee to assume or reject the lease for a period of not more than sixty days. All such extensions are on the continuing conditions that all rent and other charges under the lease are paid when due. I i (8) New Lease. If this lease shall terminate prior to the expiration of the term (whether due to bankruptcy of the Lessee, operation of law or otherwise), the mortgagee (or the senior mortgagee, if there is more than one) i shall have an option to obtain from the Lessor (i) an instrument recognizing, confirming, and giving legal effect to the continued existence of the lease . (the "Lease Confirmation"), or (ii) a new lease of the Premises demised by the lease in favor of the mortgagee or its designee (the "New Lease") upon the I following terms and conditions: (a) Within sixty days after the mortgagee receives written notice from the Lessor of the termination of the lease, the mortgagee shall make a written request to the Lessor for a Lease Confirmation or a New Lease, and the mortgagee or its designee shall enter into the applicable document within thirty days after receipt of the document from the Lessor. (b) As a condition to and upon the execution and delivery of the Lease Confirmation or the New Lease, the mortgagee shall pay to the Lessor (i) any and all sums which are then due under the lease (whether or not terminated), (ii) all expenses, including advances made under the lease to protect the Premises and reasonable attorneys ' fees incurred by the Lessor in connection with the Lessee's default, the rejection or termination of A00615 -6- Exhibit D til this lease and the recovery of possession of the Premises, and (iii) all expenses incurred in the preparation, execution and delivery of the Lease Confirmation or the New Lease. (c) The New Lease shall have a term commencing as of the date of termination of the lease and coinciding with the remaining term of this lease and be at the same rent and upon the same terms, covenants and conditions as contained in the lease, as it may have been amended prior to the date of termination, except that the New Lease shall contain the promise of the lessee to indemnify the Lessor from and against all claims, demands or liability for loss or damage arising out of or in connection with the issuance of the New Lease and to reimburse the Lessor for its costs and expenses, including reasonable attorney's fees, incurred in connection with the defense of any such claims, and the five year provision in Paragraph D(1) shall not be applicable to the New Lease. (d) Concurrently with execution of the New Lease, the Lessor shall assign to the new lessee Lessor's interest in and to any existing [- I subleases, if applicable,PP e, the subtenants of which have attorned to and been recognized by the Lessor. During the period between the termination l of the lease and the execution of the New Lease, the Lessor shall not amend or modify the subleases or take any action with respect to the demised Premises which will impair the property which is the security for the mortgage. (e) The Lease Confirmation or the New Lease shall have the same priority with respect to any mortgage, lien, charge or encumbrance on the fee of the Premises as the lease had immediately prior to its termination, and the lessee under the New Lease shall have the same right, title and interest in and to the Premises and the buildings and improvements thereon f{ i as the Lessee had under the lease immediately prior to its termination; provided, however, that the Lessor makes no representations, warranties or covenants with respect to encumbrances, liens or other matters not within the control of the Lessor that impair or may impair the lessee's right, title and interest under the New Lease; j (f) The mortgagee, if it is the initial new lessee, may assign the New Lease without the Lessor's consent by an assignment in which the t $ assignee shall expressly assume and agree to observe and perform all the covenants of the lessee under the New Lease, and such assignee may make a purchase money mortgage of the New Lease to the mortgagee. A true copy of the executed assignment and any mortgage shall be delivered to the Lessor. No other or further assignment or mortgage ofthe rNewtly Lease ( for which the written consent of the Lessor is required shall be made without such consent; (g) If the mortgagee shall demand a New Lease, the Lessor agrees, at the request of, on behalf of, and at the sole expense of the mortgagee to join in any proceedings (and if required by law, to permit any such proceedings to be brought in its name) to oust or remove the original Lessee from the Premises, but not any subtenants actually occupying the Premises who have attorned to and been recognized by the Lessor. A 0 0 6 icI -7- Exhibit D fl 0 (h) The provisions of this Paragraph D(8) are intended for the exclusive benefit of the mortgagee or any Person acquiring the Lease upon or in lieu of foreclosure of the mortgage and is not intended to and shall not be deemed to, confer any rights or benefits upon the Lessee or the Lessee's trustee in bankruptcy. (i) Mention of this Paragraph D(8) may be placed of record, and any and all mortgages or other liens, charges or encumbrances on the Lessor's interest in the Premises arising after the date of recordation or filing shall be subordinate to the provisions of this instrument. Any New Lease issued pursuant to the provisions of this instrument shall be prior to any such mortgage or other lien, charge, or encumbrance to the fullest extent permitted by law. (9) Amendment or Surrender of Lease. During the continuance of a mortgage of which the Lessor has notice, no agreement hereafter made between the Lessor and the Lessee amending, correcting or surrendering the lease shall ( be effective without the prior written consent of the mortgagee. (10) Liability of Mortgagee. (a) No mortgagee of this lease shall be or become liable to the Lessor as an assignee of this lease or otherwise for the payment or performance of any obligation of the Lessee until the holder expressly assumes by written agreement the payment or performance of such obligation. No assumption of liability shall be inferred from or result from foreclosure or other proceedings in the nature of foreclosure or as a It result of any other action or remedy contained in a mortgage, or from a conveyance or assignment pursuant to which any purchaser at foreclosure shall acquire the rights and interests of the Lessee under the terms of this lease. (b) The Lessor and the Lessee agree for the benefit of any holder of I a mortgage of this lease that they will not subordinate this lease to any mortgage that may hereafter be placed on the fee interest in the real property which comprises any portion of the .Premises or amend or alter any I ' provisions of this lease or consent to any prepayment of any rental or additional rental without securing the written consent of any such mortgagee. E. WELL SITE OPTION (1) During the lease term, the Lessor grants the Lessee an option to Iacquire twenty thousand square feet of land on the portion of the Property surrendered to the Lessor upon completion of the Initial Subdivision to be used expressly for the purpose of a potable water well. The exact location of the well site will be as mutually agreed upon so as not to unreasonably interfere with the use of Lessor's property when and if the Lessee determines that a well on the Lessor's mauka property is desirable for the Lessee 's purposes in developing the Premises. The Lessor understands that in order to obtain potable water, the Well Site must be located at an elevation which is i estimated to be between nine hundred and twelve hundred feet above sea level. (_ AOO6i -8- Exhibit D The Lessee shall have the right to assign this option for the Well Site to the Water Commission of the County of Hawaii and either the Lessor or the County of Hawaii shall have the right to develop a water well with associated required facilities on the site. In addition to the Well Site, this option shall include the right to easements for access, electric transmission lines and water transmission lines from the Well Site across the Lessor's property to water storage facilities to be built on the Premises or other property of the Lessee. Access to the Well Site shall, to the extent reasonably possible, be across the Lessee's property. The Lessee (1) shall pay all expenses associated with the conveyance and development of the site, (2) shall covenant that any intrusion and disturbance to the Lessor will be minimized, and (3) after construction, shall restore the Lessor's land surrounding the Well Site and transmission lines to even grade and good condition to the extent reasonably possible. The Lessor agrees to cooperate with the Lessee, his agents and the Water Commission of the County of Hawaii in the selection, subdivision and development of the site and to give reasonable access for- the construction and maintenance of the facility. Access to the Well Site and appurtenant easements and rights of way by the Lessee shall be limited to purposes reasonably related to the construction, use, operation, maintenance, repair and replacement of the well, electric and water transmission facilities and appurtenant facilities. Any determination that this Paragraph E is invalid or unenforceable shall not in any respect affect any other provisions of this lease. (2) The consideration to purchase the Well Site shall be $4,590.00. The consideration shall be paid in cash upon acquisition of title. F. FIRST REFUSAL TO PURCHASE. [ I (1) If the Lessor shall decide to sell in whole or part its interest in the Property or shall receive a bona fide offer from a Third Party to purchase all or a portion of the Lessor's interest in the Property which the Lessor is ( willing to accept, the Lessor shall first give written notice to the Lessee, which notice shall state the price, terms and conditions upon which the Lessor offers its interest in the Property for sale (which price, terms and conditions shall not vary from those of any bona fide, Third-Party offer to purchase) and which notice shall contain a true copy of the bona fide offer, including the offeror's name and address. Such notice shall constitute an irrevocable offer to sell such interest to the Lessee on the same terms as contained in the notice from the Lessor. If within sixty days from the receipt of the Notice the Lessee shall agree in writing to purchase the land from the Lessor, the Lessor must sell and transfer the land to the Lessee upon the terms and conditions set forth in the notice. If the Lessee does not agree in writing to purchase within the sixty-day period, the Lessor is free to sell and transfer the land to a Third Party, provided, however, that the Lessor shall not make such a transfer at a price or upon terms or conditions Il more favorable than those upon which the interest was first offered to the Lessee. If the Lessee agrees to purchase the land, the purchase shall be consummated within sixty days after the date of acceptance by the Lessee, subject to extensions for matters beyond the control of a party. If this lease expires or is terminated in any manner or for any reason, all rights of A00618 -9- Exhibit D l 0 the Lessee under this Paragraph shall cease, provided, however, that the first refusal right shall continue with respect to lands surrendered to the Lessor pursuant to the Development Lease for the balance of the lease term. This right may not be assigned separately from the Development Lease. This right shall not be exerciseable by the Lessee if he is in default hereunder either at the time the notice is given to the Lessee or on the date for closing the sale. This right does not extend to transfers to the descendants of James and Grace Ackerman, but upon such transfer, this right in favor of the Lessee shall be binding upon said descendants in all respects as it was binding upon the Lessor. IN WITNESS WHEREOF, the parties hereto have executed these presents the day and year first above written. ACKERMAN RANCH, INC. , a Hawai' corpor tion By /2/ (I, /le)- lc.— Its President BY `' 1/6 /1' /4fa�f- s Secretary-Treasurer ( Lessor LYLE I,'RSON ^ "Lessee" X006 9 -10- Exhibit D I 0 (4) STATE OF HAWAII ) ) SS. COUNTY OF HAWAII ) On this ?Z, _ day of --cy , 19(4) , before me appeared A. D. ACKERMAN and GRACE B. ACKERMAN, to me personally known, who, being by me duly sworn, did say that they are the President and Secretary-Treasurer, respectively, of ACKERMAN RANCH, INC. , a Hawaii corporation, and that the seal affixed to the foregoing instrument is the corporate seal of said corporation and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors, and said officers acknowledged said instrument to be the free act and deed of said corporation. /: C t ? Notary Public, State of Hawaii t My commission expires: I�-/,g-$1 l f i 1 i STATE OF ARIZONA - ) COUNTY OF M ) SS. M� t0.f 1(.,Q you ) i On this (2_ day of ,AJ , 19N , before me personally ,appeared LYLE ANDERSON, to me knd�+nto e the person described executed the foregoing instrument, and acknowledged that he executed the same f- as his free act and deed. [ _..) Zt.1)(\;(9_ No ary Public, in and for said County and State 141. My commission ex. ' C�titSN l 4...,0*,„,.. •�• • � En9•t9`31 A00620 -11- Exhibit D EXHIBIT "A" ( All those certain parcels of land at Hokukano 1st , Honuaina 4th and Honuaina 3rd, North Kona, Hawaii , designated on the Tax Maps for the County of Hawaii as Tax Map Key Nos . 7-9-12 : 5 (approximately 246 . 75 acres) , 7-9-12: 4 (approximately 97 . 4 acres) , 7-9-12 : 11 (approximately 22 . 664 acres) , and 7-9-06:01 (approximately 60. 546 acres) , together with all buildings, gates, fences, waterlines and other improvements now existing thereon. SUBJECT, HOWEVER, TO: 1 . Reservation in favor of the State of Hawaii of all mineral and metallic mines . 2 . Unrecorded lease dated January 31 , 1 981bet Ackerman Ranch, Inc. , as Lessor, and KealakekuaRa Ranch,, Lttd. ,een as , Lessee, expiring on January 31, 1991 . fj GLW 081689 7052H A00621 Exhibit D W rr l U) CC W D VI O tW- Et O f W U O Q I -- Z W m III ---j---- W. w oQm I O Q Q J J Z Q Q 1 `-. V, Q Q (0 Q CO CO t 12 Z.: O ,st Co. co Z i I— o i 0 I 11.1 i , IP 0 1�, Q imb lq oQ �ti 0 _ N ••\i= L N _,1 % W o jb < N1�i I-- Lt i . I- It oLA ti Q T i,C COo (n A o k o N U W f ei I' ` i 1 � � O N 0 J- 0 O CY O >- (= m X Ocn d- Q 4c W U Q p N pp W I- m W J Z r_ (n ,--(. -1-1\:(6... J 1- Ct W Q J Q D � 1_. W - E- 1 Q m0d1 U N - - W N O m Exhibit D w I w � � LLI 4. � � V) o 0 ` cfl UU U000 N Z W Q rx - -- CO o (n O (n m U Q U Q D ( W m m (n J1I-- I- Q - J_J [ (J) CI- (1) a_ cn (f) Cn Q V) Q Q Q a) Q CO m ip N lo- 00 ID Z ID _ } I� I 0 o Lo 1 — w z 1 cn N 2 N 4ii lib. >- < a `� f1� ' _ I ' 11 6 K, _0 II N N �1 Lo a i i� CNI z Ia 04 Q w { o � � >- � � I o = 'n $ CO (n (n i I W cO J U (Y N Qcc IEIC - - W LI- N AE W 00623 , I ! a Exhibit D Mr. Richard Frye Oceanside 1250 74-5620A Palani Road Suite 200 Kailua-Kona, Hawaii 96740 Re: TMK Nos: (3) 7-9-12: 04 (3) 7-9-12: 11 (3) 8-1-04: 03 [ (3) 8-1-04: 56 II Dear Mr. Frye: I + This letter is to acknowledge that 1250 Oceanside Partners, a Hawaii limited partnership, dba OCEANSIDE 1250 has obtained or acquired ownership or control of the Right(s)-of-Way for the entire length of the Bypass Highway and has satisfied the requirements as described in Paragraph 13 of that certain Development Agreement dated entered into by and between OCEANSIDE 1250 and the County of Hawaii. 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Exhibit D COUNTY OF HAWAII STATE OF HAWAII BILL NO. 18; (Draft ORDINANCE NO. 94 73 AN ORDINANCE AMENDING SECTION 25-87 (NORTH KONA ZONE MAP) AND ( SECTION 25-88 (SOUTH KONA ZONE MAP) , ARTICLE 3 , CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY _ DISTRICT CLASSIFICATION FROM AGRICULTURAL B(A-CHANGING T": UNPLANNED (U) TO AGRICULTURAL (A-1a) AT HONUAINO 3RD AND 4TH, HOKUKANO 1ST AND 2ND, KANAUEUE 1ST AND 2ND, F AND 2ND, ILIKAHI , KANAKAU 1ST AND 2ND, KAL HLU 1ST,, 2ND AND1ST 3RD AND ONOULI 1ST, NORTH AND SOUTH KONA, AWA , CO 3, 4 ,RE ANY TAX MAP KEY 7-9-06 :PORTION OF 1, 7-9-12 : PORTIONS OF BY AND 8-1-04 : PORTION OF 3 . AND 5 BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII : SECTION 1 . Section 25-87, Article 3 , Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of properties described hereinafter as follows : The district classification of the following area situated at Kanaueue 1st and 2nd, North Kona, Hawaii , shall be Agricultural (A-la) : ff PARCEL 1 : Beginning at the Southeasterly corner of this parcel of land, being also a point on the Northerly boundary of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4 , Section 2 to American Board of Commissioners for Foreign Missions, being also a point on the division between North and South Kona, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 1, 704 . 58 feet North and 6 , 126 . 02 feet East and running by azimuths measured clockwise from True South: A00629 EXHIBIT S Exhibit D _ , E 1 . 71° 45 ' 902 . 30 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission • Award 387, Part 4 , Section 2 to American Board of Commissioners for Foreign Missions to a point; 2 . 152° 14 ' 1, 055 . 02 feet along the remainder of Grant 865 to John Nakookoe to a point; Thence, for the next seven (7) courses following { along middle of stonewall and along Grant 992 to W. Whitmarsh: 3 . 251° 23 ' 30" 224 . 69 feet to a point; 4 . 250° 35 ' 58 .35 feet to a point; 5 . 255° 17 ' 131. 07 feet to a point; 6 . 240° 43 ' 26 . 91 feet to a point; 7 . 257° 50 ' 172 . 57 feet to a point; 8 . 243 ° 13 ' 30" 21 . 91 feet to a point; 9 . 256° 57 ' 98 . 95 feet to a point ; Thence, for the next twelve (12) courses following along middle of stonewall and along the Cremainder of Grant 865 to John Nakookoo : 10 . 338° 17 ' 30" 158 .36 feet to a point; 11. 257° 24 ' 102 . 95 feet to a point ; 12 . 255° 40 ' 30" 171 . 35 feet to a point; 13 . 261° 29 ' 101 .46 feet to a point; 14 . 346° 30 ' 30" 54 .40 feet to a point; 15 . 343 ° 21 ' 30" 152 . 40 feet to a A00630 �. point ; 16 . 346° 20 ' 165 . 46 feet to a point ; -2- Exhibit D 17 . 343 " 29 ' 30" 80 . 88 feet to a point; 18 . 357" 13 ' 57 . 51 feet to a point; 19 . 345' 53 ' 30" 154 . 41 feet to a point; 20 . 333° 53 ' 114 . 71 feet to a point ; 21 . 3450 43 ' 43 . 78 feet to the point beginning and containing an area of 22 . 25.1 Acres , more or less . (Refer to Parcel 1 as shown on Exhibit "A" . ) The district classification of the following area situated at Honuaino 3rd and 4th, Hokukano 1st and 2nd and Kanaueue 1st and 2nd, North Kona, Hawaii, shall be Agricultural (A-la) : PARCEL 2 : • Beginning at the Northwesterly corner of this parcel of land, being also a point on the Southerly boundary of Royal Patent 1098, Land Commission Award 614 to Charles Hall, the coordinates of said point of Uferred to Government Survey TriangulatiionStationlnning" UU OH U " being 5, 408 . 20 feet North and 934 .23 feet East and runnin ( by azimuths measured clockwise from True South: g Thence, for the next sixty-seven (67)) courses ® following along middle of stonewall and along Royal Patent 1098 , Land Commission Award 614 to Charles Hall : 1. 172° 44 ' 35 . 46 feet to a point ; l_ _ 2. 250° 06 ' 26 . 01 feet to a point; 3 . 245° 26 ' 19 . 20 feet to a point; 4 . 251° 15 ' 39 . 58 feet to a point ; 5 . 259° 25 ' 18 . 68 feet to a point ; 6 . 246° 50 ' 16 . 35 feet to a point ; A00633L -3- Exhibit D - 7. 254 ° 27 ' 40 .28 feet to a point; 8 . 323° 16 ' 7. 32 feet to a point; 9 . 249° 32 ' 44 . 32 feet to a point: • 10 . 265° 01 ' 30" 16 . 93 feet to a point; 11. 271° 10 ' 30" 50 . 61 feet to a point; 12 . 261° 46 ' 30" 67 . 77 feet to a point; 13 . 256° 32 ' 30" 36 . 61 feet to a point; 14 . 262° • 38 ' 30 .23 feet to a point; 15. 258° 17 ' 37 .28 feet to a point; 16 . 254 ° 45 '( 21.32 feet to a point; 17. 257° 35 ' 30" 36 .22 feet to a point; 18 . 265° 03 ' 21 . 89 feet to ao ' p �.nt; 19 . 263 ° 53 ' 30" 45 . 49 feet to a point; 20. 266° 14 ' 44 . 43 feet to a point; 21. 249° 07 ' 32 .29 feet to a point; 22. 256° 49 ' 30" 41. 74 feet to a ( point; l _. 23 . 250° 03 ' 30" 91. 17 feet to a point, i 24 . 257° 28 ' 88 . 18 feet to a l point; . 25 . 253 ° 37 ' 30" 14 . 36 feet to a point; [ 26. 271° 49 ' 7 . 86 feet to a point; 27. 243 ° 18 ' 30" 43 . 30 feet to a point; 28 . 252° 36 ' 45 . 75 feet to a point; 29 . 262° 29 ' 35 . 65 feet to a point; 30. 265° 31 ' 13 . 70 feet to a point; 1 . 31. 260° 35 ' 30" 76 . 29 feet to a point; 32 . 268° 05 ' 30" 59 . 53 feet to a point; A00632 -4- Exhibit D n n 33 . 253 ° 49 ' 30" 12 . 40 feet to a point; 34 . 259° 40 ' 25 . 69 feet to a point; 35 . 264 ° 02 ' 51 . 71 feet to a point; 36 . 259° 49 ' 30" 85 . 74 feet to a point; 37. 266° 56 ' 48 . 70 feet to a point; 38 . 265 ° 44 ' 61 . 02 feet to a point; 39 . 272° 05 ' 60 . 95 feet to a point; 40 . 269° 19 ' 30" 91. 04 feet to ,a point; 41. 275 ° 29 ' 26 . 42 feet to a point; . 42 .' 280' 52 ' 30" 26 . 76 feet to a point; I_ 43 . 272° 21 ' 30" 28 . 45 feet to a point; 44 . 277° 12 ' 46 . 47 feet to a point; 45 . 273 ° 22 ' 30" . . 84 . 54 feet to a point; 1 46 . 273 ° 04 ' 30" 57. 99 feet to a point; 47 . 270° 29 ' 1211 30 . 67 feet to •a point; 98. 275° 46 ' 30" 91. 01 feet to a point; 49 . 267° 54 ' 30" 87. 48 feet to a point; ti 50 . 261° 05 ' 30" 28 . 16 feet to a point; 51 . 266° 13 ' 128 .24 feet to a point; 52 . 270° 26 ' I 114 .47 feet to a point; 53 . 260° 09 ' 81.24 feet to a point; 54 . 262° 27 ' 166 . 66 feet to a point; 55 . 261° 47 ' 108 . 98 feet to a point; 56 . 243 ° 34 ' 33 . 10 feet to a point; 57. 259° 14 ' 30" I37. 03 feet to a point; 58 . 265° 34 ' 30" 77. 10 feet to a point; l _ A00633 -5- Exhibit D 59 . 262° 59 ' 118 .99 feet to a point; 60 . 256° 19 ' 39 . 78 feet to a point; 61 . 262° 44 ' 82. 08 feet to a point; 62 . 267" 50 ' 34 . 11 feet to a point; 63 . 265° 25 ' 63 . 09 feet to a point ; 64 . 273° 36 ' 30" 112. 92 feet to a point : 65 . 268° 50 ' • 151.03 feet to a point; 66 . 274 ° 59 ' 30"( 35 .27 feet to a point; 67 . 268° 30 ' 30" 48 .40 feet to a point; Thence, for the next three (3) courses following along the Westerly side { of old railroad and along the remainder of Grant 2029 to S. W. Makahiki : 68 . 15° 00 ' 431 . 60 feet to a point; 69 . 0° 23 ' 223.30 feet to a point; ij 70 . 333° 44 ' 145 .20 feet to a point; Thence, for the next seven (7) courses following along the Westerly side ( of old railroad and along the remainder of Grant 1453 to John • Cavanah: 71 . 319° 08 ' 63 . 63 feet to a point; 72 . 327° 12 ' 30" 92. 54 feet to a point; 73 . 333 ° 41 ' 55 . 11 feet to a point; 74 . 341° 52 ' 42 .41 feet to a point; 75 . 350° 21 ' 65 . 77 feet to a point; 76 . 357° 11 ' 30" 87 . 84 feet to a point; 77 . 7° 46 ' 82 . 65 feet to a point ; A00634 -6- Exhibit D 78 . 17° 59 ' 209. 88 feet along the Westerly side of old railroad and along the remainders of Grant 1453 to John Cavanah and Grant 1463 to Keawe to a point; Thence, for the next ten (10) courses following along the Westerly side of old railroad and along the remainder of Grant 1463 to Keawe: 79 . 15° 46 ' 30" 221. 91 feet to a point, 80 . 350° 40 ' 30" 86 . 03 feet to a point; 81 . 346° 02 ' 30" 127 . 39 feet to a point ; 82 . 347° 43 ' 68 . 36 feet to a point; 83 . 356° 37 ' 108 . 84 feet to a point; 84 . 358° 09 ' 110 . 66 feet to a point; 85 . 6° 27 ' 30" 75 . 31 feet to a point; 86 . 357° 30 ' 30" 143 . 26 feet to a { point; ! j 87 . 8° 45 ' 30" 30 . 57 feet to a point; 88 . 359° 52 ' 108 . 27 feet to a point; 89 . 265° 47 ' 29 . 79 feet along the remainder of Grant 1463 to Keawe to a point; Thence, for the next eight (8) courses following along the Easterly side of old railroad and along the remainder of Grant 1463 to Keawe: 90 . 357° 33 ' 107 . 96 feet to a point; 91 . 352° 21 ' 72 . 88 feet to a point; ( 92 . 356° 43 ' 30" 32. 40 feet to a point; 93 . 353° 27 ' 38 . 77 feet to a point ; A00635 _7_ Exhibit D LI 3 94 . 350° 36 ' 29 . 09 feet to a point; 95 . 339° 51 ' 130. 13 feet to a point; 96 . 329° 39 ' 30" 32 .22 feet to a point; 97 . 326° 06 ' 51. 01 feet to a point; 98 . 324° 59 ' 10 . 48 feet along the Westerly face of stonewall and along the remainder of Royal Patent 5336, Land Commission Award 9413 to Kahana to a point; r , 99 . 320° 39 ' 115 . 81 feet along the remainder { of Royal Patent 5336 , Land Commission Award 9413 to Kahana to a point; 100 . 67° 26 ' 30" 92.41 feet along wire fence and along Grant 992 to W. Whitmarsh . to a point; 101 . 70° 35 ' 63. 69 feet along middle of stonewall and along Grant 992 to 11 W. Whitmarsh to a point; 102 . 67° 10 ' 30" 124 .47 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point; ( 103 . 72° 45 ' 45" 371. 54 feet along Grant 992 to W. Whitmarsh to a point; 1 104 . 79° 49 ' 199 . 17 feet along Grant 992 to W. Whitmarsh to a point; Thence, for the next twenty-three (23) courses following along middle of stonewall and along Grant 992 to W. Whitmarsh: 105 . 82° 05 ' 30" 51. 64 feet to a point; 106 . 83° 18 ' 181 . 52 feet to a point ; A00636 -8- Exhibit D ,/ 107. 84° 58 ' 30" 118. 82 feet to a point; 108 . 85° 30 ' 30" 145 . 13 feet to a point; 109 . 91° 09 ' 79 . 55 feet to a • • point; 110 . 82° 04 ' 95. 77 feet to a point; 111. 82° 31 ' 45" 212. 72 feet to a point; 112. 359° 15 ' 512.31 feet to a point; 113 . 268° 21 ' 280. 72 feet to a point; 114 . 259° 47 ' 379 . 67 feet to a point; 115 . 260° 53 ' 149 .26 feet to a point; 116. 259° 07 ' 153.59 feet to apoint,• 117. 266° 02 ' 30" 90. 63 feet to a point; 118. 250° 32 ' 115. 64 feet to a point; 119 . 240° 54 ' 54.22 feet to a P point; ( 120. 246° 41 ' 140.89 feet to .a point; 121. 256° 30 ' 30" 95.53 feet to 'a point; 122. 240° 04 ' 30" 52. 97 feet to a point; 123 . 245° 12 ' 30" 66.16 feet to a point; 124 . 257° 45 ' 30" 34 .33 feet to a point; _ [ .� • 125 . 239° 59 ' 72. 54 feet to a point; 126 . 250° 39 ' 30" 70. 76 feet to a point; 127. 246°. 08 ' 111. 93 feet to apoint,; 128 . 332° 14 ' 1, 055 . 02 feet along the remainder of Grant 865 to John Nakookoo to a point; A00637 -9- Exhibit D ( ) • Thence, for the next four (4) courses following along Royal Patent 1670 to John D . Parish on a portion of Land Commission Award 387 , Part 4 , Section 2 to American Board of Commissioners for Foreign Missions : 129 . 64 12 ' 628 . 00 feet to a point; 130 . 79° 26 ' 602. 00 feet to a point; 131. 77° 00 ' 987 .00 feet to a point; 132 . 72° 13 ' 704 .78 feet to a point; 133 . 154° 42 ' 918 . 93 feet along the remainder of Grant 1587 to John Peters to a point; alongthe remainder of Grant 1587 Thence, following to John Peters on a curve to the right with • a radius of 1, 030 . 00 , the chord azimuth and distance being: 134 . 174 ° 32 ' 30" 699 .21 feet to a point; 135 . 194° 23 ' 350 .20 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainders of Grant 1587 to John Peters and Grant 1463 to Keawe on a curve to the left with a radius of 1, 270 . 00 feet, the chord azimuth and distance being : 136 . 165° 33 ' 1 , 224 . 95 feet to a point; 137 . 136° 43 ' 68 . 92 feet along the remainder of Grant 1463 to Keawe to a point ; -10- El D Thence, following along the remainder of Grant 1463 to Keawe on a curve to the right with a radius of 1, 030 . 00 feet, the chord azimuth and distance being : 138 . 149 ° 59 ' 30" 473 . 03 feet to a point; 139 . 163 ° 16 ' 839 .35 feet along the remainders of Grant 1463 to Keawe, Grant 1453 to John Cavanah and Grant 2029 to S. W. Makahiki to a Point; Thence, following along the remainder of Grant 2029 to S . W. Makahiki on a curve to the left with a radius of 470 . 00 feet, the chord azimuth and distance being : 140 . 136° 23 ' 15" 424 . 98 feet to a point; 141. 165° 15 ' 189 . 91 feet along Grant 1651 to Charles Hall to the point of 'beginning and containing an area of 295 . 539 Acres . (Refer to Parcel 2 as shown on Exhibit "A" . ) SECTION 2. Section 25-88 , Article 3 , Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of properties described hereinafter as follows : The district classification of the following area situated at Halekii and Keekee 1st, South Kona, Hawaii , shall be Agricultural (A-la) : A00639 -11- Exhibit D PARCEL 3 : Beginning at the Northeasterly corner of this parcel of land, being also the Northwesterly corner of Lot 39 of Kona Scenic Subdivision, Unit II (File Plan 1591) and being a point on the Southerly boundary of Grant 865 to John Nakookoo, the coordinates of said point of beginning referred to Government Survey Triangulation Station "pw OHAU" being 2, 272 . 75 feet North and 8 , 616 . 61 feet East and running by azimuths measured clockwise from True South: 1. 350° 44 ' 55" 482. 03 feet along Lots 39 , 38 , [ 37; 36 , 35 and 34 of Kona Scenic Subdivision, Unit II (File Plan 1591) and along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4 , Section 2 to ( American Board of Commissioners for Foreign Missions and along the Westerly end of Haleki ' i Street to a point; 2 . 78° 30 ' 470. 15 feet along- Lot 3 (Government Land - County of Hawaii) to a point; 3 . 348° 30 ' 438. 70 feet along Lot 3 (Government Land - County of Hawaii) to a point; [ 4 . 266' 28 ' 187.31 feet alongLot t 3 (Government Land - County of Hawaii) to a point; Thence, for the next eleven (11) courses following along middle of ( stonewall : ( A00640 -12- Exhibit D ft ,1r-. 5 , 4 ° 59 ' 157 . 50 feet along Lots 2 21 of Keekee E 2and Plan Estates (File2087) and along the remainder of aGrpoint 977ant to Panaunau to 6 . 17° 24 ' 30" 102 . 93 feet along Lots 21 and Keekee Estates (File Plan 2087) and along the remainder of aGrpoint 977ant to Panaunau to 7 . 7° 45 ' 30" 174 . 98 feet along 19 of Lots 20 and Keekee Estates i . (File Plan 2087) and along the remainder Grant 977 to Panaunauf 8 . a Point; to 91° 17 ' 30" 56. 46 feet along Lot (File Keekee Estates ( e and Plan 2087) (E remainderalong the to Panaunau to Grant 977 9 . 355" 54 ' 30^ to a Point; 333 . 18 feet along Lots 18 and 17 of Keekee Estates Li (File Plan 2087) and along the remainder of Grant 977 to Panaunau a point; to Thence, for the neat .) courses l four (4 '• � following along 10 . 86° 02 ' 30" Grant 866 to Ka [ pule : 309 . 93 feet along Lot 2 to a 11 • 80° 19 ' Point; 207 . 35 feet along Lot 1 to a 12 . 75° 14 ' Point; I183 . 86 feet along Lot 13 . point; 1 to a 79o 02 ' 674 . 13 feet along Lot 1 to a point; -13- Exhibit D '1 I i 14 . 177° 38 ' 634 . 16 feet along the remainder of Grant 977 to Panaunau to a point; • 15 . 75° 14 ' 1, 338 . 05 feet along Grant 977 to Panaunau to a point; 16 . 150° 55 ' 956. 00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4 , Section 2 to American Board of ( Commissioners for Foreign Missions to a point; 17 . 251° 45 ' 902 . 30 feet along Grant 865 to John Nakookoo to a point; Thence, for the next thirty-six (36) courses following along middle of stonewall • and along Grant 865 to John Nakookoo: 18 . 250° 02 ' 30" 41.72 feet to a point; 19 . 238° 11 ' 30" 99 . 82 feet to a point; 20 . 246° 13 ' 93 .37 feet to a point; 21. 253 ° 29 ' 121. 82 feet to a point; 22 . 257° 51 ' 121. 61 feet to a point; 123 . 249° 33 ' 59 . 76 feet to a point ; 24 . 245 ° 51 ' 177.23 feet to a point; 25 . 248° 02 ' 30" 92. 17 feet to a point; 26 . 240° 26 ' 30" 60.37 feet to a point; 27 . 254 ° 58 ' 110.46 feet to a Point; 28 . 258° 29 ' 24 .30 feet to a point ; A00642 -14- Exhibit D I (-. 29 . 274 ' 56 ' 30" 31 . 91 feet to a point; 30 . 260" 18 ' 30" 148 . 31 feet to a point; 31. 253° 43 ' 47 . 09 feet to a point; 32 . 243° 21 ' 30" 89 . 60 feet to a point; 33 . 263 ° 53 ' 30" 70 . 49 feet to a point; 34 . 254 ° 39 ' 30" 21 . 88 feet to a point; 35 . 269° 41 ' 41 . 10 feet to a point; 36 . 288' 24 ' 45 . 97 feet to a point; 37. 255° 29 ' 30" 27 .38feet to a point; 38 . 241° 21 ' 30. 35 feet to a point; 39 . 227° 12 ' 30" 1 53 . 91 feet to a point; 40. 216° 24 ' 30" 55 . 73 feet to a point; 41 . 238° 55 ' 30" 27. 24 feet to a point; 42. 255° 23 ' 30" 1 1 29 . 74 feet to a point; 43 . 271° 22 ' 69 . 73 feet to '8 point; 44 . 265° 04 ' 29 . 52 feet to a point; 45 . 275° 29 ' 30" 98 . 69 feet to a point; 46 . 271° 04 ' 85 . 71 feet to a point; • 47. 277° 42 ' 30" 71. 32 feet to a point; 48 . 269° 46 ' 21. 84 feet to a point; 49 . 270" 48 ' 110 . 24 feet to a point; 50 . 268° 22 ' 91 . 02 feet to a point; 51 . 258° 19 ' 92 . 53 feet to a point; 52 . 270° 26 ' 57. 58 feet to a point; A00643 Exhibit D -15- 1 1 i n I 53 . 265° 38 ' 177 . 70 feet to the point of beginning and containing an area of 54 .387 Acres , more or less . (Refer to Pacel 3 as shown on Exhibit "A" . ) The district classification of the following area ( • situated at Halekii , Keekee 1st and 2nd, Ilikahi, Kanakau r d - 1st and 2nd, Kalukalu lst, , 2nd, and 3rd and Onouli 1st, South Kona, Hawaii , shall be Agricultural (A-la) : PARCEL 4 : Beginning at the Southeasterly corner of this parcel of land, being also a point on the Northerly boundary of Grant 1162 to F. O. Schulze, the coordinates of said point I of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 4 , 046 . 78 feet South and 6, 502. 93 feet East and running by azimuths measured 4 clockwise from True South: 1 1. 65° 45 ' 54 " 1, 071.96 feet along middle of , - , I stonewall and along Grant 1162 to F. O. Schulze to a point; L- . 2. 78° 08 ' 30" 1, 407 .43 feet along middle of stonewall and along Grant 1162 to F. O. Schulze to a point ; Thence, for the next three (3) courses following along the remainder of Royal Patents 4386 and r 7146 , Land Commission Award 8452 to A. Keohokalole: 3 . 203 ° 12 ' 488 . 09 feet to a point; Thence, following on a curve to the left with a j radius of 870 . 00 feet , the chord azimuth and distance being : A00644 Exhibit D i _1 fl 11 . 203° 03 ' 162 . 63 feet along the remainder of Grant 1175 to Nakauwaa to a point; Thence, following along the remainder of Grant 1175 to Nakauwaa and Grant 1177 to Kamakahiona on a curve to the left with a radius of 645 . 00 feet, the chord azimuth and distance being: ii 12 . 186° 42 ' 30" 362 . 96 feet to a point; 13 . 170° 22 ' 60 . 05 feet along the remainder of Grant 1177 to Kamakahiona to a point ; f ' Thence, following along the remainders of Grant 1177 to Kamakahiona and Grant 1176 to Kini on a curve to the right with a radius of 705 . 00 feet, the chord azimuth and distance being : 14 . 186° 12 ' 384 . 70 feet to a point; III Thence, for the next five (5) courses following along the remainder of Grant 1176 to Kini : 15 . 202° 02 ' 35 .26 feet to a point; Thence, following on a curve to the left with a radius of 30 . 00 feet, the chord azimuth and li distance being : 16 . 157° 02 ' 42. 43 feet to a point; 17 . 112° 02 ' 85 . 32 feet to a point; Thence, following on a curve tothe left with a !�- radius of 645 . 00 feet, the chord azimuth and distance being : 18 . 97° 14 ' 329 . 53 feet to a point ; 19 . 82° 26 ' 397.26 feet to apoint; A00646 -18- Exhibit D 1 II11S to the current landowners of the subject property within n one-hundred-eight ght y (180) days from the effective date of this ordinance; provided that a I( maximum ninety (90) day extension may be granted by 'I_ the Planning Director with reasonable and sufficient justification; and (2) the acceptance by the Department.. of Water Supply of the required water commitment payment in accordance with its "Water Commitment Policy" within one-hundred-eighty (180) days from the effective date of this ordinance; (C) Subdivision plans for any portion of the subject property r shall besubmitted to the Planning Department and Tentative Subdivision Approval secured within four (4) years from the [ effective date of this rezoning as determined in Condition B; Final Subdivision Approval shall be secured within �� five (5) years from the effective date of this rezoning as determined in Condition B. For the purpose of this ordinance, Final Subdivision Approval shall be defined as the subdivision of any agricultural zoned lot to a lot less than twenty (20) acres in size within the subject property; • (D) A wastewater disposal system shall be constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works , whichever is !- applicable; (E) All electrical and communication utilities lines within the subject property shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation !1 site; A00648 1 -24- Exhibit D shall be responsible to comply with the following terms and conditions : (1) The applicant shall develop and submit a comprehensive public shoreline access plan for the subject property and the properties described in the SMA Permit No. 345 , subject to the review and approval by the Planning Director, in consultation with the Department of Land and Natural Resources , prior to Final Subdivision Approval, or any land alteration activity, whichever comes first;. (2) An area comprising twenty-five percent % (25 0) of the total park area, as shown on Exhibit "E" attached hereto and made a part hereof, shall be developed and. improved by the applicant or its agent in phases within five (5) years from the date Final Subdivision Approval is obtained on the subject property. The { first phase shall be completed and open to the public 1 within thirty (30) days following the opening of the ( golf course; (3) No more than a total land area of twelve ( 12) acres shall be permitted to be constructed , operated and maintained as part of the applicant ' s golf course , approved as Use Permit No . 115, and included within the coastline park or the existing conservation �_. district lands ; (4 ) A minimum of twenty-five (25)) public parking stalls in addition to parking stalls for residents , guests , and employees within the subject property and the applicant ' s adjacent lands at the principal shoreline access parking areas) signage and provisions for public access for night fishing and marine food A00660 -26- Exhibit D gatheringpurposes P poses over designated vehicular and pedestrian access routes subject to restrictions which limit said uses to recreation uses only, and other restrictions which provide for the health and safety of the general public and residents alike; and I (5) The public shoreline access plan shall also integrate wnere appropriate, any public accesswa �( Yts) to l interpretive trail system(s) and to the historical and archaeological sites to be approved by the Planning Director , in consultation with the Department of Land and Natural Resources and in conjunction with the detail mitigation plan for the park area situated in the Conservation district . (I) Prior to final approval of a small lot subdivision plat within the subject property, the applicant shall convey to the County of Hawaii by way of a perpetual easement the right to public access and recreational use of the coastlineark p and trails; provided, that restrictions in accordance with Chapter 115, Hawaii Revised Statutes , will be allowed to be established by the applicant, subject to the approval of the Planning Director, to promote public f health and safety and theeneral security ecurity of the -premises for residents and guest of the project to protect the areas ' pristine condition, and to minimize any liability to the applicant, pursuant to Chapter 520, Section 520-4 , 1 . Hawaii Revised Statutes . The applicant shall own the coastline park and trails in fee simple and maintain all lands in the coastline park area and operate such facility for public recreational use in accordance with the above terms and conditions ; OOGbi -27- Exhibit D t (-) (J) Should any unidentified sites or remains such as artifacts shell , bone, or charcoal deposits, human burials rock or coral alignments, ered pavings or walls be encountered, work in the immediate area shall cease and the Planning Director shall be immediately notified . Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken; (K) A solid waste management plan shall be prepared meeting with the approval of the Department of Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the subject property.Y Approved recommendations and mitigation measures shall be [ implemented at a time and in a manner meeting with the approval of the Department of Public Works; (L) Roadway improvements and access(es) to the subject property, including all plans and construction, shall meet with the approval of the Department of Public Works . Prior to the issuance of Final Subdivision Approval for any ` ortion P of the subject property, the applicant shall : (1) construct the channelization and signalization of the Mamalahoa Highway-Haleki ' i Street intersection; [ (2) determine the final right-of-way alignment of the entire Mamalahoa Bypass road as shown in Exhibit "C" , including its intersection areas and its acquired ownership or control . The applicant shall provide the Planning Director with a metes and bounds description of each road right-of-way segment involved and evidence of its ownership or control asAOO6I deemec3 -28- Exhibit D. (6) provide roadway stub-outs , generally shown in Exhibit "B" , to provide future connections between the sub ' property, the Alii Highway, subject g y, and southern extensions there from; provided that such stub-outs shall be constructed in accordance with the construction phasing as approved by the Department of Public 'Works . The applicant shall construct the Mamalahoa Bypass to State Department of Transportation-Highways Division standards for a• regional arterial bypass highway or segments thereof, r - and shall provide alandsca a buffer ffer along highway sections within five hundred feet of existing dwelling , as required by the chief engineer, to reduce the impacts of noise and light on the residents therein and to generally beautify i the highway appearance in such locations . Roadway segments providing the bypass ' s connection with the existing highways at its north termini shall be built to county dedicable standards for secondary arterials , pursuant to il Chatper 23 of the Hawaii County Code, instead of the State DOT standards for major arterials , in the case where the roadway segment is consistent with a Department of Transportation plan which provides for such segments to be Ia lesser, connector road and for the later extension of the arterial bypass highway to be sustantial) g y substantially further north Ior south before merging with other arterial roadways; provided that the applicant shall enter into a A 0 0 6 5 4 reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction,r land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom 1- the county may determine as benefiting from the Bypass Highway and which funds are available to the county for 1 such purpose; and provided further, that the total amount of reimbursement due to the applicant shall not ex epthe -30- Exhibt i (6) provide roadway stub-outs generally shown in Exhibit "B" , to provide future connections between the sub ' property, the Alii Highway, sect p y' 9 y, and southern extensions there from; provided that such stub-outs shall be constructed in accordance with the construction phasing as approved by the Department of Public Works . The applicant shall construct the Mamalahoa Bypass to State Department of Transportation-Highways Division standards for a• regional arterial bypass highway or segments thereof, ( and shall provide a landscape buffer along within five hundred feet of existing dwelling , as sections as required by the chief engineer, to reduce the impacts of noise and light on the residents therein and to generally beautify the highway appearance in such locations. Roadway segments providing the bypass ' s connection with the existing highways at its north termini shall be built to county dedicable standards for secondaryarterials pursuant to Chatper 23 of the Hawaii County Code, instead of the State DOT standards for major arterials , in the case where the roadway segment is consistent with a Department of - Transportation plan which provides for such segments to be a lesser, connector road and for the later extension of the arterial bypass yp s highway to be substantially further north or south before merging with other arterial roadways; provided that the applicant shall enter into a A006o4 I, reimbursement agreement with the County which sets forth 1 the terms and conditions of reimbursement for costs incurred for the construction, land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom the county may determine as benefiting from the Bypass Highway and which funds are available to the county for such purpose; and provided further, that the total amount of reimbursement due to the applicant shall not exgepd the -30- Exhibit D S total cost of land acquisition, design and construction o the Bypass Highway incurred by the applicant, less f rata portion attributed to the subject pro ert the prc P Y: (M) Prior to Final Subdivision Approval of any portion with Area 2 as shown in Exhibit "D" except for the golf course, golf clubhouse, lodge, and related facilities , the applicant shall : ( 1) complete the construction of the Phase Two of the Mamalahoa Bypass consisting of two lanes with sufficient right-of-way for a total of four lanes as shown in Exhibit "C" , meeting with the approval of the Department of Public Works , in consultation with the State Department of Transportation-Highways Division; and (2) complete p ete the construction of the Mamalahoa Bypass channelization improvements at its intersection with Mamalohoa Highway g y and Napo opo o Road , meeting with the requirements of the Department of Public Works, in f _ consultation with the State Department of Transportation-Highways Division; (N) All roadway improvements stated in Condition L and M of this ordinance shall be dedicated to the appropriate government entity. Those improvements associated with the Mamalahoa Highway Bypass shall be offered to the State Director of Transportation pursuant to Section 264-1 of the Hawaii Revised Statutes . Any connector roadways , and any protion of the Mamalahoa Highway Bypass not accepted by the State Director of Transportation shall be dedicated to the County, as provided by law; A00655 -31- Exhibit D K (0) To ensure that the Goals and Policies of the Recreational Element of the General Plan are implemented, the applicant shall provide a maximum of two acres of land abutting the • north side of Kona Scenic Park for public purposes prior to Final Subdivision Approval of the subject property. (P) In lieu of actual construction of infrastructural improvements as required under Conditions D, F, H, It, L, and M, the applicant may enter into an agreement with the Planning Director to assure the county that the infrastructural improvements will be constructed together fg with the appropriate bond, surety or other security deemed I ? acceptable to the Planning Director and the Corporation ( Counsel . Upon execution of such agreement and/or filing of the security with the County, Final Subdivision approval for the subject property or portions thereof shall be grunted prior to the actual construction of required infrastructural improvements; (Q) The Applicant shall participate in the funding and construction of any regional roadway improvements as may be required by the State Department of Transportation, provided that any costs borne by the applicant shall be credited and limited to the amount of its fair share contribution for regional road and traffic impacts , as required in Conditions L and M; (R) It shall be demonstrated to theA00A656 tisfacof the Planning Director that agricultural activity is being conducted on the subdivided lots within threeears y from the date of Final Subdivision Approval . For the purpose of this condition, "agriculture" shall be defined as the cultivation of crops , including but not limited to flowers , vegetable, foliage, and fruits that are propagated for economic or personal use . An agricultural activity will be Exhibit D considered satisfactory: f (1) if such activity is implementing P 9 a conservation program for the affected the applicable Property(ies) soil and water conservation district by directors and filed with the Soil ConservationI Service; (2) if it provides a source of income reside on the tO the person(s) who Property; or (3) if the property is dedicated for a accordance with a 9riculture uses in pplicable Tax Department procedures and that such agriculture dedication shall be made a deed covenant and duly a recorded with the State Bureau of Conveyances and copy of the recorded deeds shall be filed with the Planning Department within on from the date of Final Subdivision Approval . year Pproval . Each approved lot must comply with at least above requirements to P one of the satisfy the conditions of approval of this ordinance; S ( ) Restrictive covenants in the deeds of all shall prohibit the construction of a second hdw hinge ed lots on each lot; provided that this shall not preclude the unit construction of a 11 F guest house as defined under Chapter 25 E _ of the Hawaii County Code. A copy of the covenant (s) to be recorded with the Bureau proposed shall be submitted to °f Conveyances the Planning Department for review and approval prior to final subdivision approval . A copy of the approved covenant shall be recited in an executed by the applicant and the count Instrument the Bureau of Conveyances Y and recorded with y nces likewise prior to final subdivision approval ; A006b -33- Exhibit D f (T) The Applicant shall pay its fair share contribution to address potential regional impacts of the subject property with respect to park, fire, police, solid waste disposal facilities , sewer and roads . The fair share contribution shall be initially based on the representations contained within the change of zone application and may be increased or reduced proportionally if the agricultural lot counts are adjusted . The fair share contributions described ::elow shall be adjusted annually based on the percentage change 1 in the Honolulu Consumer Price Index (HCPI) . The fair share contribution for each agricultural zoned lot of the subject property less than ten acres in size shall be based l on a maximum density for each lot as determined by y the zoning resulting from this change of zone. The fair share contribution in a form of cash, land, facilities , or any combination thereof shall have a maximum combined value of I $ 4 , 701, 205 . 74 . In lieu of paying the fair share contribution, the applicant may construct such Limprovements/facilities related to park, fire, police, solid waste disposal facilities, sewers and roads with the approval of the appropriate agency(ies) . Any contributions required by this ordinance that exceed the fair share requirement of this proposed development shall , at the applicant ' s request be credited towards any of the applicant ' s future developments that require ( infrastructural impact contributions; (U) The Applicant shall conform, to the best extent practicable, with the guidelines as provided within the Strategies for Energy Efficient Architecture by Hawaiian Design and the State Model Energy Code, in the construction of dwellings within the subject property; A 0 0 6 6 8 -34- Exhibit D (v) In the event that the State Department of Education adopts Program an educational facilities impact fee oc, the applicant shall participate in the requirements of the program; (W) Comply with all applicable laws, rules , regulations and requirements , including those of the Department of Health, [ Fire, and the Department of Water Supply; PP Y. • (X) Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees , conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance; (Y) An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the ( approval of this change of zone. The report shall address in detail the status of the development and the compliance with the conditions of approval. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director (_ = acknowledges that further reports are not required; and, (Z) An extension of time for the performance of conditions within the ordinance, with the exception of ConditionC, may be granted by the Planning Director upon the following ( circumstances : (1) the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns , and that are not the result of their fault or negligence; (2) granting of the time extension would not be contrary to the General Plan or Zoning Code ; A006b9 -3 s- Exhibit D ( (3 ) granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; (4) the time extension granted shall be for a period not to exceed the period originally granted for performance (i . e. , a condition to be performed within one rear may be extended for up to one addi:.ional year) ; and 1 k (5) should the Applicant require an additional extension of time, the Planning Director shall submit the - 5 Applicant ' s request to the County Council for appropriate action. Further, should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate rezoning of the area to its original or more appropriate designation. SECTION 4 . In the event that any portion of the ordinance is declared invalid, such invalidity shall not affect theother parts of this ordinance. A00660 -36- Exhibit D SECTION 5 . This ordinance shall take effect upon its approval. 1, INTRODUCED BY: COUNCIL MFMBER, COUNTY oil HAWAII Hilo, Hawaii Date of Introduction: May 11 , 1994 Date of 1st Reading : May 11 , 1994 Date of 2nd Reading : June 15 , 1994 Effective Date: June 28, 1994. APPROVED AS TO FORM AND LEGALITY: CORPORATION COUNSEL �� DATED: u IG LI_ A00661 -3 7- Exhibit D • • ROBIN I. yA.N f ( 1 ‘1 '. '% •.: • .0(11 CON�A1 OFFICE ��ti c E OF SIF�,O BOBBY IE.AN aunty olN MY CLERK . Hawaiiair County Building 25 AS uPuar Strew Hilo Hadi 96720 (( . E • On Bill C ill No• 182 made �O map attache �• 6 Ordinance No ( d hereto sem, reference is Said Exhibit ��.. ibit ° I ordinance, due is no Part f the duplicate of the County Ciere' but is avazlable a copies of this Clerk. for viewing xn the IIf further inform ar1On is [ needed call 961`82 L � � 55. obi pUNTy Yahiku CZE . L. OO6t 2 Exhibit D ' O X F-- - • ?+ I / _: ' „ . , ::,_ , c• . c : . ... ' . ) ...',, ” r__ _•1 i - • i • • •, 1 —4. `� �,. _, ;tip -.: -...1-:1-i. .: /- , 1��, �� � �• ,. , 1 .; 03 ...., •,` 1, t ; •�?ice :i�. ,(�' r,{ ; , , 4 .1:1 , _•(l,: Ill.I 11,4V, • • .dir'''""etc‘--*". ... J•A4,1t = , x i , si Igh. lij,,._..... ..! -..••,......-..,ii,A -.: tr. .1...!, 4 .1 ..•.?.. :41. " . - LU ,,,d, i•216,V, •.1 .ity- „rfir,,c as .. I ,..• i ,iVide :', il •W .:LI tb • 41..,t,,; - f - ,iii:r7.,,.. , . ;await • v 1--N...0 '.% ' 1/.1011, pAillniilF.; *A. 144T,r 1114 4.11: j:06.410-.4111- kiv - i •!.0. --• .---•To 111"Wri , • , -,11, .11-‘. 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( DRAFT 6 ) iccond Reading: June 15 , 1994 Mayor. June 15 . 1994 ROLL.CALL VOTE t anted: June 28 , 1994 :ftcctivc: AYES NOES ABS EX June 28 , 1994 ARAxAKI X rhlishe-c1: July 7 , 1994 BONK-ABRAMSOx X CHILDS DE LIMA • X DOMINGO X 1 • ,HALE RATH X ( • ROSEHILL X C SCHLTITE X X 5 4 9 J a 1 DO HEREBY CERTIFY that the foregoing BILL was adopted by the County� .cared above. C ry mcnctl and published as APPROVED as to / FCRNJ� and LEG • UTY IF 2. ��' ii / COUNCIL CHAIRMAN 1N� CORPORATION COONS .��” ( COUNTY OF HAWAIIit ri-- _. •. Dote J ) /Cr ......4.41 :it CO C S' - ved/ this Z day AOO6t 1 -011. COUNTY F HAWAII Exhibit D Bill No.: 1 P.'7 ( Draft r. , A / N 2 RG _ N UA C..0 2•. ._ .1 r �_0-g,4 Q k. L E tt u u_ L A -g111 °e 1 0 L E H uS SO;9o- u L A / T -----_________________6 g-� .; a LO:90-13Z 111 � .. X A w A N u / ' [... 2 n/D 1� - X' SP' SZ'90-g-z e r i c, 0 8_, aft . .. : _.„ . ir , ,41 /04 s r i • 0 m 4.1 1 :'''' x _ f iij 90%SO-g-L;-! k ir x F=- Y. 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N e � s �Z\� ‘ n • • Y co q Al -----"-----. ° .\ le f �J\.. / ei%. n b't .41 J�' /t O �.2�` / 0 N b _, O 4 -'' � rO . .,, ,- v ----,-- .. st N `i ,.. , H A O N N 4 \2 �� O n H V T • N _ 7-3._ �// xhibit D Electronically Filed THIRD CIRCUIT 3CCV-23-0000123 23-JUN-2023 08:24 AM Dkt. 76 EXH Exhibit E .tY,OF,Nq� William P.Kenoi :„ \ yj ,. Daryn S.Arai •g A����I Acting Planning Director Mayor l. B-ri d /:, ,.•«�; • •tlf.MA.:_rte County of awai'i PLANNING DEPARTMENT Aupuni Center • 101 Pauahi Street,Suite 3 • Hilo,Hawaii 96720 Phone(808)961-8288 • Fax(808)961-8742 January 26, 2009 Michael J. Matsukawa, Esq. General Counsel Hokuli`a 1250 Oceanside Partners 78-6831 Aliei Drive, Suite K15 Kailua-Kona, HI 96740-2440 Dear Mr. Matsukawa: 2009 Annual Report Development Agreement No. 1 Change of Zone Ordinance No. 96-7 Change of Zone Ordinance No. 96-8 Special Management Area Use Permit No. 356 This is to acknowledgement receipt your comprehensive 2009 Annual Report relating to the above-mentioned Development Agreement, Change of Zone Ordinances, and Special Management Area Use Permit. The submission of the report and the information provided within the report satisfies the reporting requirements of the Development Agreement, Change of Zone Ordinances, and the Special Management Area Use Permit. We look forward to receiving the 2010 Annual Report. Sincerely, yit. 4LI DAR S. ARAI Acting Planning Director cc: Mr. Claude Onizuka, Hokuli`a p:wpwin60\pc\letters\2009\hokulia 2009 annual report 1-23-09 Hawai'1 County is an EguEthr bilyr eider and Employer " ` Ptf rti January 14, 2009 Mr. Daryn Arai, Interim Planning Director County of Hawaii Planning Department Mr. Rodney Watanabe,Chairperson County of Hawaii Planning Commission Aupuni Center, Suite 3 101 Pauahi Street, Hilo, Hawaii 96720 Subject: 2009 Annual Report Development Agreement No. 1 Change of Zone Ordinance No. 96-7 - Change of Zone Ordinance No. 96-8 Special Management Area Use Permit No.356 Dear Mr. Arai & Chairperson Watanabe: I am pleased to submit the following annual report for Development Agreement No. 1 ("Agreement")by and between the County of Hawaii ("County") and Oceanside 1250 ("Oceanside"), in accordance with Item 24 of said Agreement, Condition No. R of Change of Zone Ordinance No. 96-7, Condition No. V of Change of Zone Ordinance No. 96-8 and Condition No. 13 of Special Management Area Use Permit No. 356. This letter is intended to supplement the prior annual reports. However, if there are issues that you believe are not covered within the attachments, please do no hesitateto contact me so that I can fill in any perceived gaps with this report. In April of 1998, Oceanside 1250 and the Hawaii County entered a Development Agreement to identify the obligations of Oceanside, to provide assurance that these obligations are met in a timely manner, to provide assurances to Oceanside that it may complete full development of the Hokuli'a Project("Project"), to provide assurance to the County that the Mamalahoa Highway Bypass ("Bypass") and other public benefits set forth in the Development Agreement are completed, to allow Oceanside and the County to enter into a reimbursement agreement for costs associated with the Bypass and to reduce or eliminate uncertainty in the responsibilities of Oceanside and the County relating to the development of the Project and the Bypass. The scope and purpose of the Development Agreement is consistent with Ordinance 93- 37, the Development Agreement Code and Rule 1, which implements procedures for the application, preparation and administration of development agreements as provided by Ordinance 93-37. The Development Agreement was executed and approved by the Mayor on April 20, 1998. SCANNED JAN 2 1 2009 BYO 4 9 237 1250 Oceanside Partners • 78-6831 Alii Drit fj'jftlE• Kailua-Kona, Hawai`i 9674r- _•. phone 808-324-15 00 • fax 808-324-0171 • www.hokulia.com Mr. Daryn Arai, Interim Planning Director Mr. Rodney Watanabe, Chairperson January 14, 2009 - Page Two Golf Course The Golf Course was completed in July of 2002. Details regarding compliance with the conditions of approval of Use Permit No. 115 and SMA Permit No. 345 for the golf course will be provided in the 2008 annual reports for these permits. We will continue to monitor —Oceanside's compliance with the conditions of approval of Use Permit No. 115 and SMA Permit No. 345. Mamalahoa Highway Bypass The Mamalahoa Highway Bypass is in part designed to address existing traffic conditions, in the area and to provide an alternative route for interregional traffic between North and South Kona in support of the County's long-range traffic plan. The Draft Environmental Impact Statement and Final Environmental Impact Statement (DEI and FEIS) were both approved and accepted by Department of Public Works. Construction of the Bypass Highway commenced in January 2001. However, completion of the Bypass Highway has been prevented by the ongoing Richards (Coupe) lawsuit. Oceanside acquired from, or completed a purchase agreement with, each of the affected landowners for the necessary right-of way along the Bypass route, except for the owners at the south end of the alignment and the owners of the Coupe/Richards property. That latter property is the subject of a condemnation action. As you know, in December 2007, the Third Circuit Court granted an Order of Possession in favor of the County, but one of the co-owners of the property referred to as the "Coupe Parties" (who held an undivided 72% in the property) filed an appeal of the court's judgment and order of possession. The Hawaii Supreme Court held a hearing on the appeal on October 16, 2008 and issued its decision on December 24, 2008. According to the appellate court's ruling, the Third Circuit Court must determine the amount of damages to which the Coupe Parties are entitled and whether the condemnation is "pretextual," even though the use is a public use. As a result of the delay caused by the opposition and appeal of the Coupe Parties, as well as the delay caused by prior Kelly case, Oceanside has been meeting with landowners who completed purchase agreements for the necessary right-of-way along the Bypass route to discuss estimated dates of construction and related matters of concern to the landowners. In the meanwhile, in 2008, the County amended the rezoning ordinances to allow for the "temporary" opening of the Mamalahoa Highway Bypass (which is expected to occur in February 2009). Exhibit E Mr. Daryn Arai, Interim Planning Director Mr. Rodney Watanabe, Chairperson January 14, 2009 Page Three Shoreline Park Oceanside obtained approval of the Public Access and Shoreline Management Plan on January 29, 1999. This plan addresses the public access areas,perpetual access covenants, archaeology, marine resources and related improvement measures. Details of the provisions for historical sites were developed and will be implemented as part of the comprehensive archaeological mitigation plan that was approved by SHPD on September 7, 1999 and September 15, 1999. In 2008, SHPD approved the Shoreline Park Mitigation Plan (Phase 1) and the Archaeology Inventory Survey for the State Parcel at Hokukano Village that is situated next to the shoreline park. In addition, Oceanside obtained approval of both CDUA HA-2977 and SMA Permit No. 401 that outline the proposed facilities to be developed in the Shoreline Park. We are in the process of preparing the necessary documents as required and anticipate the preparation of construction plans as required by the conditions of approval of both permits to ensure that they are complied with. The annual report required by SMA Permit No. 401 will provide greater detail of our progress on this component of the Project. The first phase of the shoreline park with the required public parking stalls was opened on August 1, 2002. Archaeology Oceanside obtained approval from SHPD on September 7, 1999 and September 15, 1999 of the Archaeological Mitigation Plan that includes a data recovery plan, an interim protection/preservation plan, interpretive plan and a monitoring plan. We completed the final Project Preservation Plans (Non-Burial Sites) in consultation with DLNR and Hawaiian community organizations and SHPD approved the same in 2008. As required by the terms of the land use entitlements for the Project, approved mitigation measures are being implemented prior to or in conjunction with land alteration on the property. Subdivisions On September 18, 1999, the County issued Final Subdivision approval for Phase I and on December 1, 2000,the County issued Final Subdivision approval for Phase II of the project and related subdivision improvements. On July 10,2007 the County issued tentative subdivision approval for Phase 3, North and South. Other Items There are no other items to report that affect the status of the Project or the Bypass as it relates to the terms of the ordinances. Exhibit E Mr. Daryn Arai, Interim Planning Director Mr. Rodney Watanabe, Chairperson January 14, 2009 Page Four Subject to the foregoing, Oceanside 1250 intends to meet all of the terms and comply with all of the conditions that are specified within each ordinance. To date, however, we believe that this letter and the actions described herein constitute full compliance with all of the terms and conditions contained in the ordinances and Agreement and that Oceanside 1250 is in good standing under its obligations. For your reference, we have attached matrix charts for Development Agreement No. 1, Change of Zone Ordinance No. 96-7, Change of Zone Ordinance 96-8 and Special Management Area Use Permit No. 356 that indicate the status and compliance for each condition for the Development Agreement, the two change of zone ordinances and the SMA permit. Oceanside requests,per the terms of Paragraph 49 of the Development Agreement, that when the Planning Department finds compliance by Oceanside with the terms of this Agreement, the Planning Department shall issue a certificate of compliance in recordable form that Oceanside may record in the Office of the Assistant Registrar of the Land Court of the State of Hawaii and/or the State of Hawaii Bureau of Conveyances. I trust the above provides a useful description of the status of development and compliance with the conditions of approval for the ordinances. Should you have any questions regarding this report, or if you require further information regarding the Project,please contact me at (808) 324-4207. Sincerely, -)(6)4(AVieet<RA Michael J. Matsukawa General Counsel Attachments cc: Jo-Ann Hamilton w/attachment Kirk Lazaruk w/attachment Exhibit E r-, o 0 'd b '1) . g 0. 8.; oma, a+ 5b Q. 2 o a) '� y • rn U "� ti N Cn Ih co r. ooi O 0 a y�y,,, Cis •,, O r3 CU 01 t;, N 9- 3 a o 3 3 >, Q., 0 •° .1 Q a) — ° 01 ,� ;d '� cz .� a� o c 0 as °' as':,.., 0 :,.., a , :._ c � � v, x '0 ' V) 1. obr) � Z ¢ � Ct xAx w x 321, g ° to to Cl) imo .- .- v� C7 C7 a 0 O O U 4 U 4 6. 64 .N I-+ 4-, .� tea) "• y - F., N iy ,� •as W V - ox - , 0330p ; 0 >s ¢ 0.,tr, GA „ , ar i Qbw � w, p �pN p ° O _ vOA F'• 48,0 gy•, ✓ •- vj, .t 4 g, fai MI 75 ,I7 — O ,- , o w >v) will a a 3 O N 1 .1 +-, 4 E r1 0 ,. $••4 .s •0 -4•••. 6.1 0 vo CU a V] .{.�y7r y t. 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N N N N N ti -d v v U ei O O 0 O u u cv 4 0 U ' • r CA -a a) i., a; 2 o �° o o W c -r 4, bu ' , , o O O ti o L+" - '� 0 6" N • 0000 0 $-4 • N N a) n t"y y , O ct 4 y ti al - ) 0o ;- a) ta CD -d 0 0 •5, z - '�tD1 000. z •0 a) o Sq C b ... a 0 f, a) � . 4-tb � 0 al � o •r � o °"p 'ice." o ._�›' 2O yo . '~ g ct a) o ct +" 0 4 to 0 >,•-. O A _Li v. .-, - O 0 o U a) co ® orr 0 0 0v; Uv •3 a © el r, N 0 - 0 CP r..1 ..a - Cz 4 ® g "® � . Appraisal of the PROPOSED HOKULI'A SHORELINNE PARK North and South Kona, Hawaii Exhibit E THE I U TROM RO p INC. REAL ESTATE CONSULTANTS — &APPRAISERS November 29, 1999 Mr. Richard L. Humphreys Vice President 1250 Oceanside Partners 78-6831 Alii Drive, Suite K15 Kailua-Kona, Hawaii 96740 Appraisal of the Proposed Hokuli'a Shoreline Park North and South Kona,Hawaii, Dear Mr. Humphreys: Enclosed is a complete market value appraisal of a 114.570-acre conservation easement (areas A and B) situated south of the Villages of Hokukano in South Kona, together with proposed park improvements and a long-term commitment for ongoing maintenance. The subject property is a portion of a larger 1,282.223- acre holding that is identified on State of Hawaii Tax Maps as Third Division Tax Map Key 8-1-04,Parcel 3. The subject property, located at the North/South Kona district boundary, is the shoreline fronting the Hokuli'a master-planned oceanfront golf community. The subject is owned by the developer's of the Hokuli'a project and is being designated for a public park designed to service Hawaii County through a conservation easement in favor of the county. Our investigation of the subject property has included: research of real estate market activity in the appropriate economic sectors; consultation with governmental land use planners and services spokespersons; interviews of real estate professionals in the greater Hawaii County Community; a review of data and costs provided by 1250 Oceanside Partners; and an analysis of the proposed Hokuli'a park with associated improvements. Principal inspection of the subject property and environs occurred on October 26, 1999. ARBITRATION The function of our summary report is to provide real property information, real VALUATION.ANI) estate market data, and an informed independent professional present value as of MARKET STUDIES September 16, 1999 (the date that the Grant of Easement and Covenants document was signed by the developer and Hawaii County). PAUAHI TOWER SUITE 1 350 1001 BISHOP STREET HONOLULU HAWAII 96813 (808)526-0444 FAX(808)533-0147 emai lsi romgrouI.ann s'w a.ha I Is t ro m P ro a I+.Low Exhibit E f f`. Mr. Richard L.Humphreys November 29, 1999 Page2 Based on our research and analysis, it is our opinion as of September 16, 1999 that the aggregate rounded fee simple market value of the easement, improvements and maintenance commitment was: TEN MILLION NINE HUNDRED NINETY-FIVE THOUSAN it DOLLARS ($10,995,000) All conclusions presented herein are subject to the standard limiting conditions, assumptions, and certification of The Hallstrom Group, Inc., in addition to any others specifically cited in the text. All work has been completed in conformance with the Code of Professional Ethics and Standards of Professional Appraisal Practice of the Appraisal Institute, and the Uniform Standards of Professional Appraisal Practice. We appreciate the opportunity to be of service in this matter. Please contact us if clarification or further information is required. Respectfully submitted, THE HALLSTROM GROUP, INC. 41111 -5OUP, INC. s?:s_ E. Hallstrom,Jr., MAI, CRE /as O Exhibit E THE I L TROVI E R P INC. REAL ESTATE CONSULTANTS — &APPRAISERS Appraisal of the PROPOSED HOKULI'A SHORELINE PARK Located at North and South Kona,Hawaii Prepared for Mr. Richard L.Humphreys Vice President 1250 Oceanside Partners ARBITRATION VALUATION AND MARKET STUDIES PAUAHI TOWER SUITE 13W g., nn 1001 BISHOP STREET September 1999 HONOLULU I IAWAII 96813 (808)526-0444 FAX(808)533 0347 Lin ai IQDihnl Ist F,mgroup.cum worn.hnIIstrumtiruup.c nn Exhibit E TABLE OF CONTENTS Page ASSIGNMENT AN', SUMMARY 1 Assignment 1 Scope of Study 1 Summary of Conclusions 2 Definition of Terms 3 Limiting Conditions and Assumptions 5 General 5 Specific 8 ECONOMIC BACKGROUND 8 ENVIRONS AND GENERAL MARKET CONDITIONS 9 PROPERTY DATA 10 Identification 10 Legal Description 10 Easements and Restrictions 10 Tax Map Key 10 Census Tract Number 11 Geological Survey 11 Location/Address 11 Federal, State, and County Classifications 11 State Land Use 11 County General Plan 11 County Zoning 12 Flood Plain Designation 12 Title History 12 Exhibit E IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII Electronically Filed THIRD CIRCUIT C & J COUPE FAMILY LIMITED ) CIVIL NO. 3CCV-23-00001gcCV-23-0000123 PARTNERSHIP, ) 23-JUN-2023 ) CERTIFICATE OF SERV1 8 24 AM Plaintiff, ) Dkt. 77 CS ) vs. ) ) COUNTY OF HAWAII; COUNTY OF ) HAWAII, PLANNING DEPARTMENT; ) ZENDO KERN, IN HIS OFFICIAL ) CAPACITY AS DIRECTOR OF THE ) COUNTY OF HAWAII, PLANNING ) DEPARTMENT; 1250 OCEANSIDE LLC; ) JOHN DOES 1-10; JANE DOES 1-10; DOE ) CORPORATIONS 1-10; DOE ) PARTNERSHIPS 1-10; and DOE ENTITIES) 1-10, ) ) Defendants. ) ) CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this date, a true and correct copy of the foregoing document was duly served upon the parties by Judiciary Electronic Filing and Service System ("JEFS") as noted: PATRICK K. WONG, ESQ. pwong@carlsmith.com CARLSMITH BALL LLP 75-5722 Kauakini Highway, Suite 208 Kailua Kona, Hawai'i 96740 DEREK B. SIMON, ESQ. dsimon@carlsmith.com CARLSMITH BALL LLP 1001 Bishop Street, Suite 2100 Honolulu,Hawai'i 96740 and 779505 IAN R. WESLEY-SMITH, ESQ. iwesley-smith@a,carlsmith.com 121 Waianuenue Avenue P.O. Box 686 Hilo, Hawai'i 96721-0686 Attorneys for Defendant 1250 OCEANSIDE LLC ELIZABETH A. STRANCE, ESQ. elizabeth.strance@hawaiicounty.gov LERISA L. HEROLDT, ESQ. lerisa.heroldt@hawaiicounty.gov LAUREEN L. MARTIN, ESQ. laureen.martin@a,hawaiicounty.gov Corporation Counsel, County of Hawaii Hilo Lagoon Center 101 Aupuni Street, Suite 325 Hilo Hawaii 96720 Attorneys for Defendant County of Hawaii DATED: Honolulu, Hawaii, June 23, 2023. DAMON KEY LEONG KUPCHAK HASTERT /s/Toren K. Yamamoto KENNETH R. KUPCHAK TOREN K. YAMAMOTO JONATHAN N. MARCHUK Attorneys for Plaintiff C &J FAMILY PARTNERSHIP 2 779505 vo l▪i H ct oz V O o d (om) CeO O W �xO Q 'c0MNEZ ° a0a N O p » � Oo -7'>-' O _ 0 —) N • w�- 00103 n 0xOW H M N O a W'• o a) HHS ae 0. c 00 O bn Opp w w =H¢ O rz wti O o deo U Q wcAz„ vo 4 w 0-w a O E ~ cct E" Qvo 02 w 11 -10 o 0P.00 E- y M..� >a a mP" °� on d,— W Q 4 Zp2W 0 ax0rA Li. Q Q Q M Q < ,.• O N 0--, ti:, o w W W W d o E CDC Z��P. el , ti C W rn Nd� M W N w H W L.T. w o .A O Liz. 0 0 P-1 W ESI P-, c `� 7. '" 2 F- o za o ZZ 9 M OH 0 a o a 4 a 4 ?� W N U 2 W U v v d C N ti d 2 O ti a °J .� o y sc �e k a� W C7 U a¢Q — , = chi 4 . D Q W W W W W W U a. Q U 4-L o �; °� o o t o0 0 0 ,I, c&I r, 4 v; ,o r U m UCa0.— w U H �, U ,o „o �o , r r , r , , M A Y h 6)0. ,•=,, r . U 0 H ", �_ E -0 �' L : - ct Z U y p" a) [ U u 0 C v c A .. A A a U an w u •-. ^1 A a./ w .a A./, Clo E p. J -0 rAnC r ct 3 to •P 0 CJ U 0 • U C • N O d 4• 5 a) a) a) U a) V) cat bi) w U O Y V _N W at aas .) ,.� Y �j N Oh^ too a) z o 00 H o O E '� a v O W N cu 'c3▪ •, cc)j O o O 4, a 0 z ^� `? O O U ,� �\\ H a/1 x O U ~ V ~ ~ O w rz �Z] L, g N Q F� ^9 a) O ccz - v) vOH y ` n `' ; .' c� N Wii an '� L.T. 0 `a- w by y �' 0 0 o 0 go 3-1Y O O OW w tt o o Z E- H CC W U Q W . c.> .� ct O O E c4 g H E" H [ H H i�i .- O '� ct O • a Ga Oa pa Ga Ca pa H Z a ,t -z ct 'ai U U 2 Z W o cd a ,C y z O Q W W W W W W U 41. o .�▪ •v a) 0 a) ..o r r r r r r .�, H ti W G., 0 Z Y a) a)E o o O .o ct a) -o U a) o O go ct -o o a) O to a) Y LM BEFORE THE BOARD OF APPEALS PLANNING DEPARTMENT COUNTY OF HAWAII In the Matter of Appeal ) CASE. NO. PL-BOA-2024-000104 ) of ) ) CERTIFICATE OF SERVICE 1250 OCEANSIDE, LLC ) ) From the decision of the Planning ) Director, dated April 29, 2024 (Docket ) No. 24-0001) ) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was duly served upon the following parties by electronic mail)E-Mail on September 25, 2024. ELIZABETH A. STRANCE, ESQ. PATRICK K. WONG ESQ. JEAN K. CAMPBELL, ESQ. CARLSMITH BALL LLP ELIZABETH B. BAILEY, ESQ. 75-5722 Kuakini Highway, Suite 208 Corporation Counsel, County of Hawaii Kailua-Kona, Hawai'i 96740 Hilo Lagoon Center pwong@carlsmith.com 101 Aupuni Street, Suite 325 Hilo Hawaii 96720 DEREK B. SIMON, ESQ. CARLSMITH BALL LLP Attorneys for Defendant 1001 Bishop Street, Suite 2100 COUNTY OF HAWAII Honolulu, Hawaii 96813 dsimon@carlsmith.com IAN R. WESLEY-SMITH, ESQ. CARLSMITH BALL LLP 121 Waianuenue Avenue P.O. Box 686 Hilo, Hawaii 96721-0686 iwesley-smith@carlsmith.com Attorneys for 1250 Oceanside, LLC DATED: Honolulu, Hawaii, September 25, 2024. DAMON KEY LEONG KUPCHAK HASTERT /s/Toren K. Yamamoto_ KENNETH R. KUPCHAK MARK M. MURAKAMI TOREN K. YAMAMOTO Attorneys for Intervenor C & J FAMILY PARTNERSHIP 879864