HomeMy WebLinkAbout2024-10-07 1250 Oceanside LLC 3rd Exhibit List, Exhibits 21-22 (PL-BOA-2024-000104) CARLSMITH BALL LLP
PATRICK K. WONG 5878
75-5722 Kuakini Highway, Suite 208
Kailua Kona, Hawai`i 96740
Tel. No. (808) 329-6464
Facsimile No. (808) 329-9450
pwong@carlsmith.com
DEREK B. SIMON 10612
1001 Bishop Street, Suite 2100
Honolulu, Hawai`i 96813
Tel. No. (808) 523-2500
Facsimile No. (808) 523-0842
dsimon@carlsmith.com
IAN R. WESLEY-SMITH 10626
121 Waianuenue Avenue
P.O. Box 686
Hilo, Hawai`i 96721-0686
Tel. No. (808) 969-8416
Facsimile No. (808) 935-7975
iwesley-smith@carlsmith.com
Attorneys for
1250 OCEANSIDE, LLC
BEFORE THE BOARD OF APPEALS
PLANNING DEPARTMENT
COUNTY OF HAWAII
In the Matter of Appeal Case No. PL-BOA-2024-000104
of 1250 OCEANSIDE, LLC'S THIRD
EXHIBIT LIST; EXHIBITS 21-22;
1250 OCEANSIDE, LLC CERTIFICATE OF SERVICE
From the decision of the Planning Director, Hearing:
dated April 29, 2024 (Docket No. 24-0001) Date: October 11, 2024
Time: 9:30 a.m. in Kona
4896-1628-8749.1.051730-00058
1250 OCEANSIDE, LLC'S THIRD EXHIBIT LIST
Appellant 1250 Oceanside, LLC ("Oceanside"),by and through its attorneys, Carlsmith
Ball LLP, hereby identifies the following exhibits that may be presented at the hearing currently
scheduled for October 11, 2024, and/or during any further proceedings in this matter.
Exhibits 1-11 were filed with Oceanside's General Petition for Appeal of Decision of the
Planning Director, dated May 28, 2024; Exhibits 12-19 were filed with Oceanside's Exhibit List
on September 18, 2024; and Exhibit 20 was filed with Oceanside's Second Exhibit List on
September 25, 2024. Exhibits 21-22 are filed with this Third Exhibit List.
1250
Oceanside's Description of Exhibit
Exhibit No.
1 Declaratory Order; Exhibits "A"— "C"
2 Petition for Declaratory Ruling; Exhibits "1"— "12"
3 Supplement to Petition for Declaratory Ruling, submitted on February 7, 2024;
Exhibits "A"— "C"
4 Hawai`i County Ordinance No. 96-7
5 Hawai`i County Ordinance No. 96-8
6 Development Agreement, dated April 20, 1998
7 Complaint for Declaratory and Injunctive Relief; Appendixes "A" — "B";
Summons
8a Order Re: Defendant 1250 Oceanside LLC's Motion to Dismiss Complaint,
Filed March 31, 2023 [Dkt. 1], Filed May 11, 2023 [Dkt. 15]
8b Order Granting in Part County Defendants' Motion to Dismiss the Complaint for
Declaratory and Injunctive Relief, File March 31, 2023 [Dkt. 1], Filed May 25,
2023 [Dkt. 21], and Staying Proceedings Pending Referral to County of Hawai`i
Planning Department
9 Letter from County of Hawai`i Planning Department dated January 31, 2011,
4896-1628-8749.1.051730-00058 2
1250
Oceanside's Description of Exhibit
Exhibit No.
approving Variance No. VAR 10-027
10 Hawai`i County Council Resolution No. 317-12
11 Construction Plans (Coversheets) for Hokuli`a Phase 1, Package 1 & 2 (Sub 98-
124)
12 Mayor Rule 1 (Development Agreements)
13 Shoreline Park Management and Public Access Plan,November 1998
14 Grant of Easement and Covenants, dated September 16, 1999 (Shoreline Park)
15 Hawai`i County Council Resolution No. 316-12
16 Hawai`i County Council Resolution No. 20-12
17 Dedication Deed(Kona Scenic Park), dated December 12, 2016
18 County. of Hawaii v. C&J Coupe Pam. Ltd. P'ship, 124 Haw. 281, 299, 242
P.3d 1136, 1154 (2010)
19 Photographs, taken June 26, 2023
20 Annotated maps from County of Hawai`i Real Property Tax Office website
21 Road Maintenance Agreement, dated September 16, 1999
22 Settlement and Release Agreement, dated March 2, 2012
Oceanside reserves the right to supplement this Third Exhibit List and identify additional
exhibits not expressly noted herein in response to any pleadings, memorandum, arguments,
exhibits, or witnesses identified or filed by any party.
4896-1628-8749.1.051730-00058 3
DATED: Honolulu, Hawai`i, October 7, 2024.
/s/Derek B. Simon
PATRICK K. WONG
DEREK B. SIMON
IAN R. WESLEY-SMITH
Attorneys for
1250 OCEANSIDE, LLC
4896-1628-8749.1.051730-00058 4
EXHIBIT 21
1
ROAD MAINTENANCE AGREEMENT
THIS AGREEMENT, made,executed,and delivered this /o 4day of ftkkt-, 1999,
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 I &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 "Hokuli'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 21
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
WHEREAS, 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 roadways (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 IIt'NI)R FI7 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 Avreeiiient shall be without further force and effect, and OCEANSIDE shall
no further obligation hcrenndcr.
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 PART \I
a Hawaii limited partner
By RED HILL 1250, INC.,
Its General Partner
21j/l /V-ut
Y RICHARD I . Hu iHRFYS
Its VICF PRFSIDFNT
"OCEANSIDE"
COUNTY OF HAWAII:
tif
:y
STEPH K. YAMASHIRO
Its Mayor
APPROVED AS TO
FORM AND LEGALITY: DEPARTMENT OF PUBLIC WORKS
Q.s1.-''.DEPUTY CO PORATION COl� 5EL
COUNTY OF HAWAII
/��/ y Its Chief En!ineer
Date
"COUNTY"
5
P N Bond $3Stii 012 00
FIRST 'ISI PRII I1JM 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 LNSURANCE COMPANY, of
Mine is ^, 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 l6thday 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 Hokuli'a Phase 1, situated at Honuaino 4, Hokukano I & 2. Kanaueue I & 2,
Halekii, .Keekee I & 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 8-1-004:003;
SCANNED
SEP 0 8 2014
B� �
WHEREAS, the above-named principal and the obligees have entered into that
certain Road.Maintenance Agreement, dated the 16th 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 -neral Partner L
BY
sur
John N. Bustard
r �! Attorney-in-Fact
ByBICHARD L . HUMPHREYS
Its VICE PRESLDENI
Principal
2
IV1mre R.
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 taws 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 attorneys)-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 mare 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
Zr p1.I:i
a,w.au„ A.m.)o
)()efic.d. 71? 4744 'Writ rt.:
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 Motorists
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 severalty 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.
AlIIJIIAAAAA1
"OFFICIAL SEAL" ► n
Irma KI
1 l0
Notary PUDIIt;Stxta orltllnala Mr
esmanislion EfpvetJan 28.rC7aL '
My commission expires 1-29-02 7VVYT1 Y T TYTVY Irene Kiewer, 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 certifyIhat the said J.S. Kemper, Ill 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
•
S
rAµM1 ly B
mo tlI It AI�R'•av
-er
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 )
. t-,_-. , ) ss
City and County of aka )
On this / day of Sep v\. oe- , 19 9c1 , before
me personally appeared Qickord L 4-\c,Lf�re,i 5 , a
member of the co-partnership of J Su Or-ec iTh i.1 (31r#nerSPfd ---1,0
1 D �
/ 'rc. - , 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.
olitti►►y►►1
aces.
..st, ‘.74‘11, 4r- )*a
11 illiDOP ..1 c(
-rckr:� c. S
Notary Public, State of Hawaii
+� My commission expires: r"ap-.\ t c 0 T33
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.
.I ')i}� &ANA ov
athy A n Sakuma
I.s. Notary ublic, State of Hawaii
My commission expires: 2/5/2001
EXHIBIT 22
SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement(the"Agreement") is made and entered into as of March 2,
2012, by and between AMERICAN MOTORISTS INSURANCE COMPANY ("AMICO"), OCD LLC ("OCD"),
TEXTRON FINANCIAL CORPORATION ("Textron"), THE COUNTY OF HAWAII ("County"), 1250 OCEANSIDE
PARTNERS and RED HILL 1250,INC.(collectively,"Oceanside"),HOKULI`A COMMUNITY ASSOCIATION,INC.
("HCA"), THE CLUB AT HOKULI`A, INC. ( "Club"), GREENWICH INSURANCE COMPANY ("XL"), LYLE
ANDERSON FINANCIAL COMPANY, LLC AND LAFC NORTH AMERICA HOLDING COMPANY, LLC nka
LANDSTAR HOLDINGS WEST,LLC (collectively"LAC"), OASIS MANAGEMENT RESOURCES LLC("OMR"),and
MAROTTA GUND BUDD & DZERA LLC ("MGBD"). AMICO, OCD, Textron, County, Oceanside, HCA, Club, XL,
LAC,OMR and MGBD are collectively referred to herein as the"Settling Parties."
I. RECITALS
A. On April 5,2010,AMICO filed a complaint in the United States District Court for the District
of Hawaii,Civil No.CV 10-00199(SOM-KSC) ("AMICO Lawsuit").
B. On April 5, 2010, HCA and Club filed a complaint in the Circuit Court of the Third Circuit,
State of Hawaii,Civil No.10-1-116K("HCA Club Lawsuit").
C. On April 24, 2010,County filed a complaint in the Circuit Court of the Third Circuit,State of
Hawaii,Civil No.10-1-157K("County Lawsuit").
D. The AMICO Lawsuit, HCA Club Lawsuit and County Lawsuit are collectively referred to
herein as the"Lawsuits".
E. The Lawsuits concerned the Hokulia Project on the Island of Hawaii that was developed by
Oceanside("Project"),and the Mamalahoa Bypass Road and related improvements("Bypass").
F. The Lawsuits related to improvement agreements and bonds in connection with Project
and/or the Bypass that relate to the following numbered bonds issued by AMICO: 3SM95900900;
3SM95901000; 3SM95901100; 3SM95901200; 3SM95901400; 3SM95905200; 3SM95905300;
3SM95905400; 3SM98589800; 3SM98899600; as well as any and all predecessor and superseding bonds,
together with all amendments,supplements and riders to such bonds,and all improvement,maintenance or
development agreements referred to or incorporated by reference in such bonds (collectively,
"Improvement Agreements and Bonds").
EXHIBIT 22
G. On September 23, 2011, Judge Ronald Ibarra of the Circuit Court of the Third Circuit and
Magistrate Judge Kevin Chang of the United States District Court for the District of Hawaii ordered a joint
settlement conference concerning the Lawsuits. Thereafter, joint settlement conferences occurred on
November 29,December 8,December 12 and December 13,2011. On December 13,2011,the Settling Parties
agreed on the record in open court to a written term sheet which sets forth the essential terms of a valid,
enforceable settlement, and which would be further documented in Definitive Agreement(s) that are
reasonably acceptable to the Settling Parties and that include usual and customary terms for a transaction
and settlement of this sort,and Settling Parties also agreed to file stipulations for dismissals with prejudice of
the Lawsuits by January 31,2012. This Agreement is one of those Definitive Agreements.
II. COVERED CLAIMS
The term "Covered Claims" means any and all claims, counter-claims, demands, actions, causes of
action, damages (in any manner denominated, including, but not limited to, compensatory, consequential,
special,general and punitive damages),liabilities,losses,obligations,attorney's fees, expert fees,court costs,
and litigation costs, whether known or unknown, suspected or unsuspected, threatened or unthreatened,
matured or unmatured, contingent or noncontingent,liquidated or unliquidated,however denominated,and
in any manner arisen,which (i) were brought or could have been brought by and between any of the parties
to the Lawsuits against each other with respect to the Improvement Agreements and Bonds; (ii) relate in any
manner to, on account of, or arising from the Lawsuits; and/or (iii) relate to the Improvement Agreements
and Bonds,with the following exceptions and clarifications as it relates to the County and Oceanside:
1. The Covered Claims include all matters concerning obligations of Oceanside and/or its
Representatives(defined below)relating to all phases of the Bypass,even if required by(i)agreements other
than the Improvement Agreements and Bonds,such as the Development Agreement between Oceanside and
the County dated April 20,1998 ("Development Agreement"),and Reimbursement Agreement dated
February 22,2008 and/or(ii) applicable law,ordinances,regulations,licensing and permitting
requirements;and.-
2. The County agrees that any and all obligations under the Phase 1 Improvement Agreement
between Oceanside and the County dated September 16,1999 and Phase 2 Improvement Agreement between
2
Oceanside and the County dated November 27,2000 ("Phase 1 and Phase 2 Improvement Agreements")
are suspended. The County further agrees that if Oceanside(and/or a subsequent developer)elects to
resume development of the Project and the nature and/or scope of the development differs materially from
Project as currently approved,the County will not require performance of Oceanside's obligations under the
existing Phase 1 and Phase 2 Improvement Agreements and/or the Development Agreement. Instead,the
County agrees that the infrastructure obligations of Oceanside(and/or a subsequent developer)with respect
to the Project shall depend upon the nature and scope of the development proposed to be resumed and shall
be determined by negotiation between the County and Oceanside(and/or a subsequent developer),each
acting reasonably. If Oceanside(and/or a subsequent developer)elects to resume development of the Project
in substantially the same manner as the Project is currently approved,the obligations set forth in the Phase 1
and Phase 2 Improvement Agreements shall once again become applicable,but Oceanside(and/or a
subsequent developer)shall not be required to provide bonds to secure performance of such obligations but
will be required to make disclosure regarding financial assurances as required to be disclosed by HRS
Chapter 484 and HUD Regulations,and that the County has no obligations to complete the off-site
improvements in Phase 1 and Phase 2.
3. Notwithstanding anything herein to the contrary(i)any Phase 1 and Phase 2 lots already sold and
conveyed to bona fide third-party buyers,and any Phase 1 lots transferred by Oceanside to the Club and/or
HCA as part of this settlement pursuant to Section V.A.3,infra,shall not in any way be affected by the
provisions of this Agreement as long as there is off-site infrastructure(consisting of internal roads,water,
sewers,and electric power)to the respective Phase 1 or Phase 2 lots,and(ii)the conveyances by Oceanside
to the Club of the existing Golf Course,Golf Clubhouse parcels,Ocean Club parcels and other related amenities
(collectively the"Golf Facilities"),wherever situated,pursuant to Section V.A.3,infra,shall be allowed to
occur expeditiously in order to implement this settlement. Nothing in this paragraph 3 shall affect in any way
Oceanside's and/or Oceanside's Representatives'rights and/or obligations.
III. INTENT
The Settling Parties desire to reach a global and binding settlement of the Lawsuits and any
future claims related to the Covered Claims. The Settling Parties further desire to fully,finally,and
3
completely compromise,settle and release the Covered Claims. Upon the execution of this Agreement and
subject to the Settling Parties'full compliance with the terms and conditions set forth herein,it is intended
that the Settling Parties shall have released any and all Covered Claims against each other and their
Representatives(as defined below),and shall be completely barred from asserting the Covered Claims
prospectively,except to the extent any claim is expressly reserved herein or to the extent that any claim may
arise from a breach of this Agreement. In addition,the Settling Parties desire to provide the broadest release
of claims to and for the benefit of AMICO and its Representatives(as defined below) relating to the Project,
the Bypass,the Lawsuits,and the Improvement Agreements and Bonds. The Settling Parties,except for
Oceanside,desire to provide the broadest release of claims to and for the benefit of OCD and its
Representatives(as defined below) relating to the Project,the Bypass,the Lawsuits,and the Improvement
Agreements and Bonds.
IV. RELEASES AND DISMISSALS
In consideration for the covenants,benefits,and representations under this Agreement,the parties
hereby further agree and promise as follows:
A. Mutual Release.
1. "Representatives"as used herein shall collectively mean and include,without
limitation,any and all past and present insurers,re-insurers,retrocessionaires,employees,officers,directors,
LLC members,agents,successors and assigns. In addition,AMICO's Representatives include direct and
indirect parent and affiliate companies of AMICO,including but not limited to Lumbermens Mutual Insurance
Company,Lou Jones&Associates,and any other member of the Lumbermens Mutual Group. In addition,
OCD's Representatives include direct and indirect parent and affiliate companies of OCD,including but not
limited to Pacific Investment Holdings Corporation and Japan Airlines Co.,Ltd. However,Representatives do
not include: (a)lot owners with mortgages assigned to Textron,and(b) individual lot owners at Hokuli'a. In
addition,Oceanside's Representatives include successors to Oceanside's interests in the Project,including
successors acquiring such interests by foreclosure,deed in lieu of foreclosure and/or other remedies.
2. Each Settling Party hereby forever mutually releases,acquits,discharges,and
agrees to dismiss with prejudice all Covered Claims against each of the other Settling Parties and their
4
Representatives,and each Settling Party hereby forever releases,acquits,discharges,and agrees to dismiss
with prejudice all Covered Claims against AMICO and its Representatives and OCD and its Representatives
whether or not asserted in the Lawsuits(including,but not limited to,any claims or liabilities that could have
been,but were not,asserted in the Lawsuits,that relate in any manner to,are on account of,or arise from any
of the Lawsuits and/or the Improvement Agreements and Bonds;provided that such releases do not include
or affect:
(i) Textron and Oceanside claims,rights and obligations relating to the Textron Loan and
Security Agreement dated June 29,2006("LSA")and to the lot owners'purchase money notes receivable and
related mortgages are not Covered Claims. Textron and Oceanside agree that Textron's attorneys fees and
costs incurred in the Lawsuits will be added to the loan balance due under the LSA,but Textron shall look
only to the loan collateral(e.g.,the purchase money notes receivable and related mortgages)and its proceeds
to recover such attorney fees and costs and will not seek to recover said amount from Oceanside or its
Representatives;in all other respects,the LSA remains in full force and effect. In addition,except as expressly
set forth in this Agreement,such release by Textron in favor of the other Settling Parties and their
Representatives shall not affect in any way contracts,rights or obligations between Textron and such entities
or third parties,including,without limitation,the Intercreditor Agreement between Bank of Scotland(n/k/a
"Lloyds")and Textron dated June 29,2006;the Guaranty,Environmental Certificate and Indemnity
Agreement executed by Lyle Anderson Financial Company,LLC, and the Subordination and Standstill
Agreement,executed by Lyle Anderson Financial Company,LLC and The Lyle Anderson Company,Inc.;the
Loan Servicing Agreement between Textron and Oceanside administered by OMR;the Lock Box Agreement
between Textron and Chase Bank;and the Custodial Agreement between Textron and Equiant,each in
connection with the LSA. Notwithstanding the foregoing,any and all claims that Textron has or may have
against AMICO and its Representatives are released pursuant to the terms of this Agreement;
(ii) Claims between OCD,and Oceanside(or any of their respective Representatives)related to
1250 Oceanside Partners,except for(a)claims made in the Lawsuits,and(b)claims which are described in
Section V.A.5 of this Agreement. For the avoidance of doubt,nothing in this Agreement shall affect that
certain Mutual Release dated as of May 23,2002 between Red Hill 1250,Inc.and OCD.
5
(iii) OCD's(or any of its Representatives')claims against(or owed by) Red Hill 1250,Inc.for
indemnification pursuant to the Partnership Interests Purchase Agreement,dated as of January 22,2002,
between OCD and Red Hill 1250,Inc.("PIPA"),except for(i) claims made in the Lawsuits,and(ii)claims
which are described in Section V.A.5 of this Agreement;
(iv) Claims between Oceanside,HCA and/or Club on the one hand,and the County on the other
hand that are unrelated to Covered Claims. The County also agrees that Oceanside,Oceanside's
Representatives,HCA and/or Club are excused from securing bonds for work relating to Covered Claims. In
connection with the releases between the County,the Club and the HCA,who have not alleged claims against
each other in the Lawsuits,subject to all applicable law,ordinances,regulations,licensing and permitting
requirements,except as otherwise provided in this Agreement,the County agrees that it will take no steps to
prevent the construction and/or transfer of Club amenities,lots or homes in Phase 1 and infrastructure to
support Phase 1 of Hokuli'a as the result of the failure of Oceanside or Oceanside's Representatives to comply
with the terms of the Development Agreement;and Phase 1 and 2 Improvement Agreement.
(v) Claims between the Club and the HCA on the one hand,and Oceanside on the other hand that
are unrelated to Covered Claims,except as expressly set forth in this Agreement;
3.The releases provided herein by or on behalf of the Club and the HCA are on behalf of the
Club and HCA entities only,and are not a release made by or on behalf of any past or present
individual project lot owners and any past or present Equity or Non-Equity Member of the Club;
4.The mutual releases by and between XL on the one hand and its insureds on the other
hand,(The HCA,the Club,Oceanside,Phillip Gund,Jo Ann Hamilton,Daniel Kassa and Stephen
Marotta)will be contained in a separate settlement agreement and mutual release,which will be
entered into and effective on or before the Settlement.Closing,and are not provided herein;
5. Nothing in this Agreement shall release or impair in any way any rights and
obligations,including but not limited to indemnity rights or obligations,of AMICO,Lloyds,LAC,OMR,MGBD
and XL,if any,under the non-discharged AMICO bond(s)issued for the Las Campanas or Superstition
Mountain Projects. Each Settling Party agrees that OCD (and its Representatives)and Textron have no
obligations for said bonds.
6
6. In addition to the foregoing releases,the Settling Parties also hereby forever release,
acquit,discharge,and agree to dismiss with prejudice all claims,demands,actions,causes of action,damages
(in any manner denominated,including,but not limited to,compensatory,consequential,special,general and
punitive damages),liabilities,losses,obligations,attorney's fees,expert fees,court costs,and litigation costs,
whether known or unknown,suspected or unsuspected,threatened or unthreatened,matured or unmatured,
contingent or noncontingent,liquidated or unliquidated,however denominated and relating in any way to the
Project,the Bypass,and the Improvement Agreements and Bonds against AMICO and its Representatives.
7. In addition to the foregoing releases,the Settling.Parties also hereby forever release,
acquit,discharge,and agree to dismiss with prejudice all claims,demands,actions,causes of action,damages
(in any manner denominated,including,but not limited to,compensatory,consequential,special,general and
punitive damages),liabilities,losses,obligations,attorney's fees,expert fees,court costs,and litigation costs,
whether known or unknown,suspected or unsuspected,threatened or unthreatened,matured or unmatured,
contingent or noncontingent,liquidated or unliquidated,however denominated and relating in any way to the
Project against OCD and its Representatives except as expressly set forth in this Agreement.
8. Nothing in this paragraph or its subparagraphs relates to or waives claims arising
out of any breach of the terms of this Agreement.
9. Nothing in this Agreement constitutes an admission or recognition by any Settling
Party that any lot owner possesses any legal rights or claims against any Settling Party relating to the
Improvement Agreements and Bonds.
B. Dismissal With Prejudice of the Actions. The Settling Parties agree to execute and file
stipulations for dismissal,with prejudice,of all claims,counter-claims and third-party claims in the Lawsuits
at the Settlement Closing unless otherwise before hand dismissed with prejudice by the applicable Court(s).
The stipulations shall be approved by court orders of dismissal in each of the three cases and shall reserve
jurisdiction in each respective court to enforce the terms of the settlement upon noticed motion,and the
court's decision on such motion shall be binding and non-appealable.
C. Waiver. The Settling Parties agree to waive any protection set forth in California Civil Code
§1542,to the extent that provision is applicable to this Agreement. California Civil Code§ 1542 states:
7
"A general release does not extend to claims which the creditor does not know or suspect to exist in
his or her favor at the time of executing the release,which if known by him or her must have
materially affected his or her settlement with the debtor."
V. ADDITIONAL COVENANTS AND TERMS
In further consideration for the covenants,benefits,and representations under this Agreement,the
Settling Parties further agree and promise as follows:
A. Additional Consideration. Additional consideration shall be made by or on behalf of some
of the Settling Parties at Settlement Closing(as defined in paragraph C),except as otherwise provided,as
follows:
1. AMICO shall pay the County TWELVE MILLION FIVE-HUNDRED THOUSAND AND
NO/100 DOLLARS($12,500,000.00)at Settlement Closing that will be escrowed for use toward completion of
the Mamalahoa Highway Bypass.
2. Oceanside shall execute a TWENTY MILLION AND NO/100 DOLLAR
($20,000,000.00)non-recourse promissory note in favor of the County,payable two years from the date of
settlement closing. Said funds will be used by the County toward completion of the Bypass. The note shall be
secured by a non-recourse first mortgage on property with an appraised value of approximately$20 million
(Twenty Million Dollars) . Oceanside shall provide County with an appraisal for the property to be
mortgaged. The County has the right to obtain its own independent appraiser to assist it in negotiations on
collateral for the note and mortgage. The mortgaged property would initially include 38 Hokuli'a Phase 2 lots,
the parcel identified as Hokuli'a Phase 3 East(valued as 52 lots)and the parcel identified as Hokuli'a Phase 3
South(valued as 66 lots) excluding that small portion currently used for Club storage and that portion of the
parcel identified as Phase 3 North that is not already the collateral of that certain loan identified as the
Ackerman loan,owned by Oceanside. If the appraised value of those lots does not reach$20 million(Twenty
Million Dollars),Oceanside shall cause Front Nine LLC to contribute up to 42 lots owned by it as additional
security,and if the combined total of those lots does not reach$20 million(Twenty Million Dollars),
Oceanside shall cause Pacific Star LLC to put up its Keopuka parcel as additional security.Lloyds shall
subordinate its first lien position on the above lots and parcels if and to the extent necessary to provide
8
$20MM of appraised mortgage security in favor of the County. Oceanside shall also arrange or cause to be
provided to the County at the Settlement Closing the following:
a A certificate of insurance confirming insurance coverage fo the mortgaged
properties,for the two year period of the promissory note;
b. Tax Clearance Certificate covering Oceanside or any other entity providing
the security for the County Mortgage;
c. A corporate authorizing resolutions for providing the promissory note and
County Mortgage;
d. An ALTA Loan policy in favor of the County assuring its first mortgage lien
on the collateral properties;
e. In any sale of all or a portion of the collateral properties during the term of
the promissory note,the proceeds up to$20MM shall be deposited to the escrow account for use to
complete the Bypass;
f. Transfer all of its right,title and interest to the north portion of
Mamalahoa Highway Bypass to the County in"as is"state;and
g. Turn over all of the files(excluding privileged documents and emails)
relating,concerning or involving the construction of the Mamalahoa Highway Bypass,including but
not limited to the construction plans for the Bypass completed only for the part constructed to date,
and permitting,and approvals for the work to complete.
3. HCA,Club,Oceanside and Lloyds shall enter into an agreement that includes
the transfer of certain Phase 1 lots and other anticipated amenity properties to the HCA and Club,pursuant to
a separate agreement between HCA,Club,Oceanside and Lloyds,free of liens(except lots subject to Textron
mortgages).
4. XL shall pay TWO MILLION DOLLARS($2,000,000.00)to the Club and/or HCA,in
exchange for a mutual release with its insureds,the HCA,the Club,Oceanside,Phillip Gund,Jo Ann Hamilton,
Daniel Kassa,Stephen Marotta which shall be in a separate settlement agreement and mutual release which
will be entered into and effective on or before the Settlement Closing.
9
5. OCD(i)shall vacate and release its ELEVEN MILLION SIX-HUNDRED THOUSAND
AND NO/100 DOLLAR($11,600,000.00) (plus interest)judgments against 1250 Oceanside Partners and Red
Hill 1250,Inc.,(ii)shall terminate and cancel the promissory note dated December 15,2007 from Red Hill
1250,Inc.to OCD in the principal amount of$11,600,000.00(and the guaranty of such promissory note by
1250 Oceanside Partners),(iii)shall terminate and release the obligation of Red Hill 1250,Inc.(and the
guaranty of such obligation by 1250 Oceanside Partners)to pay OCD $11,600,000.00 (plus interest)in
consideration of the assignment by OCD to Red Hill 1250,Inc.of OCD's partnership interests in 1250
Oceanside Partners,and(iv) shall also release,discharge and terminate,or cause to be released,discharged
and terminated,all liens,encumbrances and other charges in favor of OCD on or against any assets or
property of 1250 Oceanside Partners and/or Red Hill 1250,Inc.,including,without limitation,all applicable
property previously equitably transferred to the Club but still held in the legal name of 1250 Oceanside
Partners. OCD shall execute,acknowledge and deliver,or cause to be executed,acknowledged and delivered,
such other and further documents and instruments,and shall take or cause to be taken such other and further
actions,as 1250 Oceanside Partners and/or Red Hill 1250,Inc.(and their respective successors or assignees)
may reasonably request as necessary to implement the provisions of this Section V.A.5.
6. On or before Settlement Closing,Lloyds and AMICO shall enter into a separate
mutual release agreement,and Lloyds and the County shall enter into a separate mutual release and
subordination agreement as part of the above-referenced promissory note and mortgage transaction.
7. The County,the Club,and the HCA shall deliver to AMICO at the date of the
Settlement Closing originals if available and in their possession of each of the Improvement Agreements and
Bonds to which they are obligees with a written release that is binding on the County,the Club,and the HCA,
as applicable,that the Improvement Agreements and Bonds are discharged and that AMICO thereby is forever
released,exonerated and discharged from any and all liability or obligation under said Improvement
Agreements and Bonds.
8. Textron shall deliver to AMICO at the date of the Settlement Closing originals if
available and in its possession of each of the Dual Obligee Riders to which Textron is a dual obligee under the
Bonds with a written release that is binding on Textron that the Bonds and Dual Obligee Riders are
10
discharged and that AMICO thereby is forever released,exonerated and discharged from any and all liability
or obligation under said Bonds and Dual Obligee Riders.
9. Except with respect to OCD and AMICO and its Representives,for which all releases
given in Section IV.A shall be effective and all stipulations provided in Section IV.B.shall be executed upon
OCD's and AMICO's respective performance of its covenants and terms pursuant to Section V.A.,the
performance of all the covenants and terms in this Section V.A by each respective party at the Settlement
Closing is an express condition precedent to the efficacy of each of the respective releases given in Section
IV.A and V.A.7&8 and to the execution of the stipulations provided in Section IV.B.
B. No Admission of Liability. The settlement of this matter is not to be construed as an
admission of wrongdoing,fault,or liability by any of the Settling Parties or any of their Representatives,but is
to be construed strictly as a compromise and settlement of all disputes between the Settling Parties and their
respective Representatives regarding the Covered Claims and for the purpose of avoiding further controversy,
litigation,and expense related thereto and arising therefrom.
C. Time for Performance. Payments,consideration(except conveyances)and further
documentation required by this Agreement for the Settlement Closing shall be made or completed by March
23,2012,noon,Hawaii time,("Settlement Closing").Time is of the essence of this Agreement. Except with
respect to OCD and AMICO and its Representivesfor which all releases given in Section IV.A shall be effective
and all stipulations for dismissal provided in Section IV.B.shall be executed provided that OCD and AMICO
each respectively performs its covenant pursuant to Section V.A.in the times specified in this Section V.C,
performance by each Settling Party of its respective obligations set forth in Section V.A by the times specified
in this Section V.0 is an express condition precedent to the efficacy of each of the respective releases given in
Section IV.A and V.A.7&8 and the execution of the stipulations for dismissal in Section IV.B.
D. Default,Breach,and Remedies Available to Parties. If any of the Settling Parties hereto
fails to perform any of its obligations hereunder,such party shall be deemed to be in default of this
Agreement and subject to the jurisdiction of the Courts pursuant to Section IV.B. The Circuit Court of the
Third Circuit,Third Division,will have jurisdiction for the sole purpose of resolving any disputes and any
disagreements over the documentation,closing and enforcement of this Agreement with respect to the HCA
11
Club Lawsuit and the County Lawsuit,and the Settling Parties agree to a binding non-appealable,non-jury
hearing upon noticed motion before Judge Ronald Ibarra to resolve any of said issues. The United States
District Court for the District of Hawaii will have jurisdiction for the sole purpose of resolving any disputes
and any disagreements over the documentation,closing and enforcement of this Agreement with respect to
the AMICO Lawsuit,and the Settling Parties agree to a binding non-appealable,non-jury hearing upon noticed
motion before the Magistrate Judge Kevin Chang to resolve any of said issues. Any such hearing may be
expedited by each respective court.
E. Attorneys'Fees and Costs. Except as provided herein,the Settling Parties agree to bear
their own respective attorneys'fees and costs incurred herein and in connection with the Lawsuits. To the
extent the Settling Parties fail to fully perform under this Agreement and a motion to compel enforcement of
the same or any other legal proceedings is commenced in connection therewith in which attorneys'fees are
expended,any non-breaching party shall be entitled to recover his/hers or its attorneys'fees and costs from
the defaulting party.
F. Facts. Each and every Settling Party understands and expressly accepts and assumes the
risk that the facts with respect to which this Agreement is executed may hereafter prove to be different from
the facts now known to them to be true and agrees that this Agreement shall remain effective
notwithstanding any such differences in fact except as stated above.
G. Ownership of Claims. Each Settling Party represents and warrants to each other Settling
Party that at all times referred to herein that(i)it has all the necessary right,power and authority to settle
the Covered Claims released herein by it and to execute,deliver and perform this Agreement,(ii)no other
person other than the applicable Settling Party had or has an interest in the Covered Claims released
pursuant to this Agreement,and it has not sold,assigned,transferred,conveyed,or otherwise disposed of any
of the same,and(iii)the execution,delivery or performance of this Agreement and the other actions to be
taken herein do not conflict with or breach any agreement,judgment,or decree binding on such Settling Party.
In addition,the Club and HCA hereby represent that they have not assigned(or purported to assign)any of
their respective rights or claims under the Improvement Agreements and Bonds.
12
H. Headings. The headings included in this Agreement are for convenience only and do not in
any way limit,alter,or affect the matters contained in this Agreement or the paragraphs that they encaption.
I. Alteration of the Agreement. This Agreement shall not be altered,amended,modified,or
otherwise changed in any respect,or particular whatsoever,except in a writing duly executed by all of the
Settling Parties. Each and every Settling Party acknowledges and agrees that it will make no claim,at any
time or place,that this Agreement has been orally altered or modified in any respect whatsoever.
J. Legal Representation. Each Settling Party represents that it is represented by counsel,has
had adequate opportunity to consult with counsel if so desired,and has also been encouraged to seek and
obtain the advice of counsel in this matter. Further,each Settling Party represents that it fully understands
the effects and consequences of this Agreement and has freely and voluntarily entered into this Agreement
upon due consideration for its own position and has not entered into this Agreement on the basis or advice of
any other Settling Party or the counsel for any other Settling Party to this Agreement.
K. Choice of Law and Venue. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Hawaii.
L. No Party Deemed Drafter. The usual rule that any ambiguity in a document shall be
construed against the party drafting the document shall not apply to this Agreement.The Settling Parties
shall jointly be deemed to be the drafters of this Agreement.
M. Merger. This Agreement contains the entire agreement between the Settling Parties,and
merges and supersedes all prior oral or written agreements between the Settling Parties with respect to the
subject matter hereof. The terms of this Agreement are contractual and not a mere recital.
N. Severability Clause. It is understood and agreed by the Settling Parties that if any part,
term,or provision of this Agreement is held by the courts to be illegal or in conflict with any law of the State
of Hawaii,the validity of the remaining portions or provisions shall not be affected,and the rights and
obligations of the Settling Parties shall be construed and enforced as if the Agreement did not contain the
particular part,term,or provision held to be invalid.
0. Authority to Execute. Each individual executing this Agreement on behalf of a Settling
Party expressly represents and warrants that he/she has the full and complete right,power and authority to
13
sign for and execute this Agreement on behalf of said Settling Party,and thereby binds said Settling Party,and
its successors and assigns,to the covenants,representations,warranties,terms,and provisions of this
Agreement
P. Counterparts. This Agreement shall be executed by all parties to this Agreement by March
9,2012,noon,Hawaii time,and this Agreement may be executed in counterparts or by scanned or facsimile
signature page,and any sets thereof that are collectively executed by all of the Settling Parties shall be
binding and effective for all purposes and shall be treated the same as original signatures.
Q. No Third Party Beneficiaries. Nothing in this Agreement,express or implied,is intended
to confer upon any person not a party to this Agreement any rights or remedies of any nature whatsoever
under or by reason of this Agreement
IN WITNESS WHEREOF,the Settling Parties hereby execute this Agreement as of the date first
mentioned hereof.
AMERICAN MOTORISTS INSURANCE COMPANY
By#
Its: Pre aryL. C G o
OCD LLC
By:
Its:
1250 OCEANSIDE PARTNERS
By:Red Hill 1250,Inc.
Its: General Partner
By:
Its:
•
14
sign for and execute this Agreement on behalf of said Settling Party,and thereby binds said Settling Party,and
its successors and assigns,to the covenants,representations,warranties,terms,and provisions of this
Agreement.
P. Counterpattg. This Agreement shall be executed by all parties to this Agreement by March
9,2012,noon,Hawaii time,and this Agreement may be executed in counterparts or by scanned or facsimile
signature page,and any sets thereof that are collectively executed by all of the Settling Parties shall be
binding and effective for all purposes and shall be treated the same as original signatures.
Q. No Third Party Beneficiaries. Nothing in this Agreement,express or implied,is Intended
to confer upon any person not a party to this Agreement any rights or remedies of any nature whatsoever
under or by reason of this Agreement.
•
IN WITNESS WHEREOF,the Settling Parties hereby execute this Agreement as of the date first
mentioned hereof,
AMERICAN MOTORISTS INSURANCE COMPANY
By:
Its:
OCD LLC �r By:M+ sato Ha Beg a
• Its:Manager
• 1250 OCEANSIDE PARTNERS
By:Red Hill 1250,Inc,
Its: General Partner
By: ...
Its:. .
14
sign for and execute this Agreement on behalf of said Settling Party,and thereby binds said Settling Party,and
its successors and assigns,to the covenants,representations,warranties,terms,and provisions of this
Agreement.
P. Counterparts. This Agreement shall be executed by all parties to this Agreement by March
9,2012,noon,Hawaii time,and this Agreement may be executed in counterparts or by scanned or facsimile
signature page,and any sets thereof that are collectively executed by all of the Settling Parties shall be
binding and effective for all purposes and shall be treated the same as original signatures.
Q. No Third Party Beneficiaries. Nothing in this Agreement,express or implied,is intended
to confer upon any person not a party to this Agreement any rights or remedies of any nature whatsoever
under or by reason of this Agreement.
IN WITNESS WHEREOF,the Settling Parties hereby execute this Agreement as of the date first
mentioned hereof.
AMERICAN MOTORISTS INSURANCE COMPANY
By:
Its:
OCD LLC
By:
Its:
1250 OCEANSIDE PARTNERS
By:Red Hill 1250,Inc.
Its: General Partner
By:
14
RED HILL 1250,INC.
By:
Its: 1 (t5( "
HOKULI'A COMMUNITY ASSOCIATION,INC.
By:
Its:
THE CLUB AT HOKULI'A
By:
Its:
THE COUNTY OF HAWAII
By:
Its:
TEXTRON FINANCIAL CORPORATION
By:
Its:
GREENWICH INSURANCE COMPANY
By:
Its:
15
RED HILL 1250,INC.
By:
Its:
HOKULI'A COMMUNITY ASSOCIATION,INC.
its:
THE
THE CLUB AT HOKULI'A
By:
Its:
THE COUNTY OF HAWAII
By:
Its:
TEXTRON FINANCIAL CORPORATION
By:
Its:
GREENWICH INSURANCE COMPANY
By:
Its:
15
RED HILL 1250,INC.
By:
Its:
HOKULPA CONIMUNITY ASSOCIATION,INC.
-...
By:‘,....eg:Zeeti i ‘0-7"4
Its:
THE CLUB AT HOKULI'A
By:
Its:
THE COUNTY OF HAWAII
BY:
Its:
TEXTRON FINANCIAL CORPORATION
By:
Its:
GREENWICH INSURANCE COMPANY
By:
Its:
15
RED HILL 1250,INC.
By:
Its:
HOKULFA COMMUNITY ASSOCIATION,INC.
By:
Its:
THE CLUB AT HOKULl'A
By: ef;°1- 77-•
Its: 3/0- VP V*'
THE COUNTY OF HAWAII
By:
Its:
TEXTRON FINANCIAL CORPORATION
By:
Its:
GREENWICH INSURANCE COMPANY
By:
Its:
15
By:Red Hill 1250,Inc.
Its: General Partner
RED HILL 1250,INC.
By:
Its:
HOKULI'A COMMUNITY ASSOCIATION,INC.
By:
Its:
THE CLUB AT HOKULI'A
By:
Its:
TH All
I
By:
MAYOR
Its:
TEXTRON FINANCIAL CORPORATION
By:
Its:
15
STATE OF HAWAII )
SS.
COUNTY OF HAWAII )
On March 9,2012 ,before me personally appeared WILLIAM P. KENOI,to me
personally known,who,being by me duly sworn, did say that he is the Mayor of the County of
Hawai`i,a municipal corporation of the State of Hawai`i, that the seal affixed to the foregoing
instrument is the corporate seal of said County of Hawai`i,the foregoing instrument was signed
and sealed on behalf of the County of Hawai`i by authority given to said Mayor of the County of
Hawaii by Sections 5-1.3 and 13-13 of the County Charter,County of Hawaii(2010),as
amended,and said WILLIAM P. KENOI acknowledged said instrument to be the free act and
deed of said County of Hawaii.
Notary Public,State of Hawai`i
Printed Name: Guillerma G. Sumera
My commission expires:9/22/13
NOTARY CERTIFICATION STATEMENT
Document Identification or Description: Settlement and Release
Agreement= 1250 Oceanside Partners and Red Hill 1250,Inc., et al.
Doc.Date: l_7 Undated at time of notarization.
No. of Pages: 17 Jurisdiction: Third Circuit
3/9/12
? ti s
Signature of Notary Date of Notarization and
Certification Statement
Guillerma G.Sumera
Printed Name of Notary
RED HILL 1250,INC.
By:
Its:
HOKULI'A COMMUNITY ASSOCIATION,INC.
By:
Its:
THE CLUB AT HOKULI'A
By:
Its:
THE COUNTY OF HAWAII
By:
Its:
TEXTION FINANC L CORPO TION
, f
By: 4A J;
Its: Vicc Pre-s. icbni - fironc0.
GREENWICH INSURANCE COMPANY
By:
Its:
15
RED HILL 1250,INC.
By:
Its:
HOKULI'A COMMUNITY ASSOCIATION,INC.
By:
Its:
THE CLUB AT HOKULI'A
By:
Its:
THE COUNTY OF HAWAII
By:
Its:
TEXTRON FINANCIAL CORPORATION
By:
Its:
GRE WICH INSURAN _!WAVY
By: .-1 ---..""111111.1.1.—
y CIts: -rl for (tt rns ;.if,1a2 1
15
LYLE ANDERS N FINANCIAL COMPANY,LLC
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LAFC NORTH AMERICA HOLDING COMPANY,LLC
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OASIS MANAGEMENT RESOURCES LLC
By
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MAROTTA GUND BUDD&DZERA LLC
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APPROVED AS TO FORM:
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LYLE ANDERSON FINANCIAL COMPANY,LLC
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LAFC NORTH AMERICA HOLDING COMPANY,LLC
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LYLE ANDERSON FINANCIAL COMPANY,LLC
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LAFC NORTH AMERICA HOLDING COMPANY,LLC
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OASIS MANAGEMENT RESOURCES LLC
By:
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MAROTTA GUND BUDD&DZERA LLC
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APPROVED AS TO FORM:
:X Y. FUJICHAXU
WILLIAM MEHEULA
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RE AULD T.H• " " S
Attorney for OCD,LLC
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LYLE ANDERSON FINANCIAL COMPANY,LLC
By:
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LAFC NORTH AMERICA HOLDING COMPANY,LLC
By:
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OASIS MANAGEMENT RESOURCES LLC
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MAROTTA GUND BUDD&DZERA LLC
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APPROVED AS TO FORM:
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J. DOUGLAS G
MELVIN M. _MIYAGI.
Attorneys for
The Club at Hokuli'a, Inc.
and Hokuli'a Corrnuxnity
Association, Inc.
16
GREENWICH INSURANCE COMPANY
By:
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LYLE ANDERSON FINANCIAL COMPANY,LLC
By:
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LAFC NORTH AMERICA HOLDING COMPANY,LLC
By:
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OASIS MANAGEMENT RESOURCES LLC •
By:
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MAROTTA GUND BUDD&DZERA LLC
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LINCOLN-S.T. ASHIDA
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BEFORE THE BOARD OF APPEALS
PLANNING DEPARTMENT
COUNTY OF HAWAI`I
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 October 7, 2024:
ELIZABETH A. STRANCE, ESQ.
JEAN K. CAMPBELL, ESQ.
ELIZABETH B. BAILEY, ESQ.
Corporation Counsel, County of Hawaii
Hilo Lagoon Center
101 Aupuni Street, Suite 325
Hilo Hawaii 96720
Attorneys for Defendant
COUNTY OF HAWAII
KENNETH R. KUPCHAK
MARK M. MURAKAMI
TOREN K. YAMAMOTO
1003 Bishop Street, Suite 1600
Honolulu, Hawaii 96813
Attorneys for Intervenor
C & J COUPE FAMILY LIMITED PARTNERSHIP
4896-1628-8749.1.051730-00058
DATED: Honolulu, Hawai`i, October 7, 2024.
/s/Derek B. Simon
PATRICK K. WONG
DEREK B. SIMON
IAN R. WESLEY-SMITH
Attorneys for
1250 OCEANSIDE, LLC
4896-1628-8749.1.051730-00058 6