HomeMy WebLinkAboutRES 633 Draft 01 2022-2024MYY Os p
COUNTY OF HAWAPI _• STATE OF HAWAFI
1rE Of;
RESOLUTION NO. 6
A RESOLUTION AUTHORIZING THE ACQUISITION OF PRIVATE PROPERTY BY
EMINENT DOMAIN OF A PORTION OF TAX MAP KEY NUMBER (3) 9-5-007:016,
SITUATED AT KAHILIPALI`IKI AND KAHILIPALINUI AHUPUA`A, DISTRICT OF
KA`U, ISLAND AND COUNTY OF HAWAI`I, STATE OF HAWAI`I, FOR THE
NA`ALEHU WASTEWATER TREATMENT PLANT.
WHEREAS, the Administrative Order on Consent entered with the U.S. Environmental
Protection Agency, Docket No. SDWA-UIC-AOC-2017-0002, revised and effective as of
February 14, 2024, requires the County to provide wastewater treatment that is protective of
surface water and underground sources of drinking water for 194 properties in Na`alehu, and to
close the Na`alehu large capacity cesspools ("LCCs") no later than December 31, 2027; and
WHEREAS, the October 2018 Preliminary Engineering Report, August 2023 Revised
Preliminary Engineering Report, and September 2024 Draft Environmental Information
Document have identified a portion of that land covered by Tax Map Key No. (3) 9-5-007:016 as
the preferred location of the Na`alehu Wastewater Treatment Plant; and
WHEREAS, Ala Kahakai Trail Association ("ATA") is the fee simple owner of real
property ("Property") situated at Kahilipali`iki and Kahilipalinui ahupua`a, District of Ka`u,
Island, County, and State of Hawaii, identified by Tax Map Key Number (3) 9-5-007:016; and
WHEREAS, ATA obtained ownership of the above -referenced land through an
agreement with Legacy Land Conservation Program, ("LLCP") which included a conservation
easement; and
WHEREAS, funding for the purchase of the above -referenced land by ATA, in addition
to LLCP, came from the County of Hawai`i's Public Access, Open Space, and Natural Resources
Preservation Fund and other private sources; and
WHEREAS, ATA and the County of Hawaii ("County") entered into an Agreement
Regarding the Na`alehu Wastewater Treatment Plant" on December 16, 2019 (see Exhibit "A");
and
WHEREAS, the County and ATA agreed to exclude 28.739 acres, more or less, from the
Conservation Easement placed on the above -referenced property, as a potential location for the
Na`alehu Wastewater Treatment Plant ("Project Site"); and
WHEREAS, the County, in order to comply with the United States Environmental
Protection Agency regulations and the above -referenced Administrative Order on Consent
pursuant to 40 CFR § 144.88, which requires the elimination of LCCs, seeks to acquire a portion
of the Property for the construction of a wastewater treatment plant (the "Project") to close
existing LCCs and address the needs of the Nd'dlehu community; and
WHEREAS, the Project will require 1) the acquisition by County of the 28.739 acres,
more or less, plus easement on the mauka portion of Waikapuna as shown on Exhibit "B"
attached hereto and made a part hereof, and together with temporary use of any adjacent lands
necessary for construction purposes, including but not limited to temporary easements for
construction and operations, and storage and disposal areas, and 2) the nonexclusive use of any
other reasonable and necessary easement routes maintained by ATA that allow passage through
the Property to access the Project Site; and
WHEREAS, the Project has been determined by the County as providing a public use
and purpose that benefits the people of the County; and
WHEREAS, it is necessary for the County to take, acquire, and condemn the Project Site
to complete the Project; and
WHEREAS, Section 10 1 - 13 of the Hawaii Revised Statutes requires that a
condemnation action by the County be authorized by a resolution of the Council; now, therefore,
BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAVI that
pursuant to section 10 1 - 13 of the Hawaii Revised Statutes, the Corporation Counsel of the
County be and is hereby authorized and empowered to initiate proceedings in eminent domain,
as provided by law, for the taking, acquisition, and condemnation of the Project Site, which is
that portion of the Property identified by Tax Map Key Number (3) 9-5-007:016, containing an
area of 28.739 acres, more or less, situated at Kdhilipali'iki and Kdhilipalinui ahupua'a, District
of Ka'a, Island and County of Hawaii, as more specifically shown on the attached Exhibit "B."
BE IT FURTHER RESOLVED that in the process of said proceedings in eminent
domain, the Corporation Counsel be and is hereby authorized and empowered to negotiate terms
of settlement in accordance with the approval of the Court before which such proceedings are
prosecuted.
IN
BE IT FINALLY RESOLVED that the County Clerk shall transmit copies of this
resolution to the Office of the Mayor; Department of Environmental Management; Office of the
Corporation Counsel; Department of Finance; and Ala Kahakai Trail Association.
Dated at Kona , Hawai`i,this 20th day of November , 20 24.
INTRODUCED BY:
C(-4'
COUNCIL MEMBER, COUNTY OF HAWAI`I
COUNTY COUNCIL ROLL CALL VOTE
County of Hawai`i AYES NOES ABS EX
Hilo, Hawai`i EVANS X
GALIMBA X
I hereby certify that the foregoing RESOLUTION was by INABA X
the vote indicated to the right hereof adopted by the COUNCIL of the KAGIWADA X
County of Hawaii on November 20, 2024
KANEALI'I-KLEINFELDER X
KIERKIEWICZ X
ATTEST: KIMBALL X
LEE LOY
VILLEGAS X
6 1 0 1
j4:A"4/1"-
Reference: C-1052/LAAd-69
Y CLE ' CHAIRPERSO &PRESIDING RESOLUTION NO. 633 24
OFFICER
3
Exhibit "A"
0
AGREEMENT REGARDING THE
NAALEHU WASTEWATER TREATMENT PLANT
This Agreement Regarding the Naalehu Wastewater Treatment Plant (the
"Agreement") is made this _I\.& dayof_ber,,,b,, 2019 by and between Ala
Kahakai Trail Association, a Hawaii nonprofit corporation, whose mailing address is
P.D. Box 2338, Kamuela, Hawai'i 96743 ("ATA"), and the County of Hawai'i, a political
subdivision of the State of Hawaii, whose mailing address is 25 Aupuni Street, Suite
2103, Hilo, Hawai'i 96720 ("County").
RECITALS
WHEREAS, ATA will soon be the fee simple owner of all of that certain parcel of
land situate at K;5hilipali'iki and K;5hilipalinui ahupuaa, District of Ka'Q, Island and
County of Hawaii, State of Hawai'i, bearing Tax Map Key designation (3) 9-5-007-016
and containing an area of 2,317.844 acres, more or less, including the historic fishing
village of Waikapuna, and more specifically described in Exhibit "A" attached hereto and
made a part hereof ("Waikapuna" or the "Property"); and
WHEREAS, County's Department of Environmental Management has identified
28.739 acres on the mauka portion of Waikapuna as a potential location for the
Na'alehu Wastewater Treatment Plant ("WWTP Location"), described in the map and
survey attached hereto as Exhibit "B"; and
WHEREAS, to allow County and the Ka'G community the opportunity to further
explore this potential location, the Parties agreed to exclude said WWTP Location from
"Grant of Conservation Easement" which is intended to be recorded by ATA in favor of
County immediately after ATA acquires fee simple ownership of the Property, attached
hereto as Exhibit "C" (the "Conservation Easement"). To be clear, the Conservation
Easement will cover all of the Property except for the 28.739 acre WWTP Location.
THE PARTIES AGREE AS FOLLOWS:
1. Consideration. The parties have reached this agreement in
consideration of County and ATA each agreeing to exclude the WWTP Location from
the Conservation Easement, while the County determines where to site their new
wastewater treatment facility, together with the other recitals (all of which form a part of
this Agreement) and other good and valuable consideration, the adequacy and receipt
of which are hereby acknowledged
2. Possible Future Conservation Easement. In the event that County
does not begin construction of the Na'alehu Wastewater Treatment Plant on WWTP
Location within 10 years of the execution of ATA's acquisition of the Property and
recording of the Conservation Easement, a Conservation Easement in a form
substantially same as the Conservation Easement over the Waikapuna Property
attached as Exhibit "C", will be recorded over and permanently burden the WWTP
Page 1 of 47
Location. The terms of the Conservation Easement shall not be amended or waived
without first consulting with the State Legacy Land Conservation Commission and
securing Board of Land and Natural Resources approval. This 10 year deadline may be
extended by a written instrument executed by the parties hereto.
3. In the event that County begins construction of the Na'alehu Wastewater
Treatment Plant in the WWTP Location within 10 years of the execution of ATA's
acquisition of the Property and recordation of the Conservation Easement, a
Conservation Easement in a form substantially same as the Conservation Easement
over the Waikapuna Property attached as Exhibit "C", will be recorded over and
permanently burden any land that is not within the final as -built layout for the WWTP
Location (which surveyed as -built location will be provided by County).
4. The parties (a) acknowledge the importance of the Conservation
Easement in preserving natural and cultural resources on the Waikapuna Property, (b)
agree to make good faith efforts to adhere to the spirit of the Conservation Easement
over the surrounding Waikapuna Property should the County develop the Na'alehu
Wastewater Treatment Plant on the WWTP Location, and (3) intend that they will openly
and transparently communicate with each other about conditions and actions on the
Waikapuna Property and the WWTP Location that may impact the conservation of the
natural and cultural resources protected under the Conservation Easement.
5. The County agrees that if ATA sells or otherwise transfers the Property,
ATA's successors and assigns shall have the same rights as ATA under this
agreement.
6. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, and all of which together shall be deemed to
be one and the same instrument when each party has signed one such counterpart.
7. Entire Agreement. This Agreement constitutes the full and complete
agreement and understanding between the parties hereto and shall supersede all prior
communications, representations, understandings or agreements, if any, whether oral or
written, concerning the subject matter contained in this Agreement, and no provision of
this Agreement, may be modified, amended, waived or discharged, in whole or in part,
except by a written instrument executed by all of the parties hereto.
Page 2 of 47
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first set forth above.
ATA:
ALA KAHAKAI TRAIL ASSOCIATION
By:
Kaleo Paik
Its Secretary, Board of Directors
COUNTY:
COUNTY OF HAWAI'l
By:
Harry Kim
Mayor
Approval Recommended:
am
Deanna Sako
Director of Department of Finance
Approved as to form and legality
By:
Ronald Kim
Deputy Corporation Counsel
Page 3 of 47
NOTARY ACKNOWLEDGMENT
STATE OF HAWAII
) SS.
COUNTY OF o,,-.Lyld
State of Hawaii
C, 4-r - Cou my of _ N [jj
On this to day of 20joL_, before me personally
appeared I ,/,jpA to me known to be the person described in and
who executed the foregoing instrument and acknowledged that he/she/they
executed the same as their free act and deed.
-V tignaturef )N6tary Public T
Print Name: KRISTEN NAKAMURA 19-501
4.')FJ B J"kc-.*
My Commissio rIex pits: EXPIRATION: November 24, 2023 �A%....
Q..........
(Seal) o0"11/1/1
........ 4 4
0 F \A
NOTARY CERTIFICATE, STATE OF HAWAII
Doc.Description/ID: AG"F-mr-&T RfgAstot-i
IVAA F-V JnA-rl
440 WAft-VAr" 1XCAF7k-t
Doc. Date: uwoAmo Paqes:_!j.1_
Notary Na :-Kriston Nakamura- Circuit
tary Situref Cert. Date
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first set forth above.
ATA:
ALA KAHAKAI TRAIL ASSOCIATION
By:
Kaleo Paik
Its Secretary, Board of Directors
COUNTY:
COUNTY OF HAWAVI
ZL..�
Approval Recommended:
By: 4- /' /�
Deanna Sako
Director of Department of Finance
Approved as to form and legality
By:
Ronald Kim
Deputy Corporation Counsel
Appro,,ed as to nI Funds
in the amounts and for the purposes
set forth herein.
DIRECTOR OF FINANCE
Page 3 of 47
M
On this I Oth day of December, 2019, before me personally appeared ROY TAKEMOTO,
to me personally known, who, being by me duly sworn, did say that he is the Managing Director
of the County of Hawaii, a municipal corporation of the State of Hawaii, that the foregoing
instrument was signed on behalf of the County of Hawaii 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
(2016), as amended, and assigned by the Mayor to the Managing Director pursuant to Section 6-
1.3(h) of the County Charter; and said ROY TAKEMOTO acknowledged said instrument to be
the free act and deed of said County of Hawaii.
K S Signature
0
i. :-4oTAq 0
AMBER K.S. KEPOO
18-145 Print or Type Name
..........
0 F �A Notary Public, State of Hawaiit 0"ON
My Commission Expires: 0410l/22
NOTARY CERTIFICATION
Doe. Date: Undated
No. of Pages: 47
Notary Name: AMBER K.S. KEPOO
Agreement Regarding the
Doe. Description- Naalehu Wastewater
Treatment Plant
N
Notary Signature Date
Third Circuit
!.0TA142- - 0
ia Ln'. lob
OF
ljmmMO
EXHIBIT A
Legal Description
-ITEM I: -
All of that certain parcel of land (being all of Royal Patent Grant
Number 994, Apana 1 to Haleloa; all of Royal Patent Grant Number
3161 to to S. K. Kawaiponia and Hao; all of Royal Patent Grant
Number 2159 to Moeawa; all of Royal Patent Grant Number 1897 to
Kahula; a portion of Royal Patent Grant Number 2771 to S. Laanui; the
remainder of Royal Patent Grant Number 994, Apana 2 to Heleloa; all
of Land Commission Award Number 7553-B, Apanas 1 and 2 to Pa; all
of Royal Patent Number 4996, Land Commission Award Number
7315, Apanas 1 and 2 to Keawahano; all of Royal Patent Number
3296, Land Commission Award Number 9963, Apanas 1, 2 and 3 to
Leanui; all of Royal Patent Number 5001, Land Commission Award
Number 7542, Apana 2 to Kahaliukua; all of Royal Patent Number
6821, Land Commission Award Number 7535, Apanas 1 and 2 to
Kokai; all of Royal Patent Number 2957, Land Commission Award
Number 10445, Apana 2 to Naluahi; all of Royal Patent Number 3211,
Land Commission Award 10591, Apanas 2 and 3 to Pihe; a portion of
Royal Patent Number 6882, Land Commission Award Number 9971,
Apana 10 to W. P. Leleiohoku; Exclusion 1 and Exclusion 2 at
Kahilipali Nui and Iki, Kau, Hawaii) situate, lying and being at Kahilipali
Nui and Iki, roughly at the south end of the Naalehu Spur Road,
District of Ka'u, Island and County of Hawaii, State of Hawaii, being
PARCEL 16, as shown on survey map prepared by Wayne A. Subica,
Jr., Land Surveyor, with John D. Weeks Inc., dated November 30,
2016, updated on December 16, 2016 and February 26, 2017, and
revised on May 7, 2019, and thus bounded and described; to -wit:
Beginning at a pipe at the northeast corner of this parcel of land, the
coordinates of which referred to Government Survey Triangulation
Station "STINE 2" being 994.46 feet south and 3404.98 feet west and
running by azimuths measured clockwise from true South:
1.
3410 42'
239.88
feet along Grant 820:2 to
Laweliilii to a spike, found;
2.
3260 42'
118.91
feet along Grant 820:2 to
Laweliilii to a pipe set;
3.
3320 42'
289.63
feet along Grant 820:2 to
Laweliilii to a spike, set;
4.
3300 42'
512.16
feet along Grant 820:2 to
Page 4 of 47
5. 3220 42' 162.36
6. 2970 57' 203.28
7. 3190 12' 843.48
8. 3370 57' 1974.22
Laweliilii to a spike, set;
feet along Grant 820:2 to
Laweliilii to a spike, set;
feet along Grant 820:2 to
Laweliilii to a spike, set;
feet along Grant 820:2 to
Laweliilii, along Grant 2724:1
to Kalike to a pipe, set;
feet along Grant 2724:1 to
Kalike to a nail, found;
9.
3460
34'
1611.60
feet along Grant 2599 to
Kahakauwila to a pipe, set;
10.
3350
27'
1869.12
feet along Grant 2599 to
Kahakauwila to a pipe, set;
11.
3330
12'
1328.36
feet along Grant 2599 to
Kahakauwila to a pipe, set;
12.
3530
54'
1955.38
feet along Grant 2114 to
Keanu to a pipe, set;
13.
3400
47'
30" 1738.93
feet along Grant 2114 to
Keanu, along the land of
Kawala to a pipe, set;
Thence,
along the shoreline for the
next nineteen (19) courses, the
direct azimuths and distance
being:
14.
530
07'
126.11
feet to a 'Y' cut in pahoehoe,
set;
15.
61 0
36'
176.82
feet to a 'Y' cut in pahoehoe,
set;
16.
470
46'
287.44
feet to a rebar, set;
17.
270
03'
205.71
feet to a pipe, set;
18. 550 02' 20" 592.74 feet to a pipe, set;
Page 5 of 47
19.
58"
17'
30"
269.46
feet to a pipe, set;
20.
500
35'
20"
254.92
feet to a pipe, set;
21.
45"
09'
30"
435.14
feet to a 'Y'
cut in pahoehoe,
set;
22.
510
01'
50"
1040.70
feet to a 'Y'
cut in pahoehoe,
set;
23.
3570
32'
30"
703.29
feet to a 'Y'
cut in pahoehoe,
set;
24.
170
08'
20"
776.45
feet to a 'Y'
cut in pahoehoe,
set;
25.
210
49'
10"
1396.80
feet to a 'Y'
cut in pahoehoe,
set;
26.
170
17'
40"
1633.15
feet to a 'Y'
cut in pahoehoe,
set;
27.
220
02'
10"
1228.39
feet to a 'Y'
cut in pahoehoe,
set;
28.
390
32'
20"
1110.77
feet to a 'Y'
cut in pahoehoe,
set;
29.
360
12'
50"
754.21
feet to a 'Y'
cut in pahoehoe,
set;
30.
520
04'
10"
621.40
feet to a spike in concrete,
found;
31.
610
00'
297.21
feet to a 'Y'
cut top of large
boulder, set;
32.
250
06'
50"
498.19
feet to a 'Y'
cut in pahoehoe,
set, thence;
Along the Government
Land of Waiohinu for the following eight
(8) courses:
33.
1320
30'
282.67
feet to a 'Y'
cut in pahoehoe,
set;
Page 6 of 47
34. 1770 30' 3486.01
35. 1770 45' 05" 7727.94
36. 1770 00' 2203.64
37. 1650 50' 30" 1110.91
38. 990 00' 1079.97
39. 1560 30' 10" 1449.71
40. 1640 15' 1313.07
41. 2500 00' 2586.31
42. 1620 09' 10" 882.06
43. 1790 48' 40" 1198.69
feet to a "N' cut on
pahoehoe, found;
feet to a nail, set;
feet to a pipe, set;
feet to a pipe, set;
feet to a pipe, set;
feet to a pipe, set;
feet to a pipe, set;
feet along stonewall, along
the remainder of Grant 2771
to S. Laanui to a pipe, set;
feet along stonewall, along
Grant 2771 to S. Laanui to a
pipe; set;
feet along stonewall, along
Grant 2771 to S. Laanui to a
"SL" cut in pahoehoe, found;
44. 1670 22' 1298.83 feet along stonewall, along
Grant 996 to Laanui to a
pipe, set, thence;
Along a portion of Parcel 1 of Tax Map Key: 9-5-22, along the
remainder of RP 6882, LCAw
9971 Apana 10 to WP
Leleiohoku on a curve to the
left with a radius of 7960.00
feet, the chord azimuths and
distance being:
45. 2690 22' 53.9" 537.56 feet to a pipe, set, thence;
Along a portion of Parcel 1 to Tax Map Key: 9-5-22, along the
remainder of RP 6882, LCAw
9971 Apana 10 to WP
Leleiohoku on a curve to the
left with a radius of 7690.00
Page 7 of 47
46. 2660 55' 17.2" 146.18
47. 2660 23' 40" 1734.28
feet, the chord azimuths and
distance being:
feet to a pipe, set;
feet along the remainder of
Parcel 1 of Tax Map Key: 9-
5-22, along a portion of
Parcel 15 of Tax Map Key: 9-
5-021, along the remainder of
RP 6882, LCAw 9771 Apana
10 to WP Leleiohoku to a
pipe, set;
48. 1760 23' 40" 5.00 feet along a portion of Parcel
15, of Tax Map Key: 9-5-21,
along the remainder of RP
6882, LCAw 9771 Apana 10
to WP Leleiohoku to a pipe,
set;
49. 2660 23' 40" 513.50
feet along a portion of Parcel
15 of Tax Map Key: 9-5-021,
along the remainder of RP
6882, LCAw 9771 Apana 10
to WP Leleiohoku to the point
of beginning and containing a
GROSS AREA of 2333.644
acres, more or less.
EXCEPTING AND EXCLUDING therefrom Exclusion 1 having an area
of 8.0 acres and Exclusion 2 having an area of 7.8 acres, leaving a
NET AREA of 2317.844 acres, more or less.
-ITEM II: -
(A) A nonexclusive easement for roadway access and utility
purposes over, across, and under, Road Easement A, Road
Easement B, Road Easement C, Road Easement E, Road
Easement F, Road Easement G (Revised) and Proposed
Naalehu Spur Road, as more particularly described and set forth
in DECLARATION OF EASEMENTS FOR ROADWAY AND
UTILITIES, dated August 5, 2004, recorded as Document No.
2004-173077; subject to the terms and provisions contained
therein.
Page 8 of 47
Said DECLARATION OF EASEMENTS FOR ROADWAY AND
UTILITIES was amended by instrument dated October 26, 2004,
recorded as Document No. 2004-228021.
(B) A nonexclusive easement for roadway access and utility
purposes, through, over, under and across Road Easement "D"
as more particularly described and granted in GRANT OF
EASEMENT FOR ROADWAY ACCESS AND UTILITIES
PURPOSES, dated August 5, 2004, recorded as Document No.
2004-173078; subject to the terms and provisions contained
therein.
-ITEM III: -
A non-exclusive easement for pedestrian and vehicular ingress and
egress and utility purposes over and across TMK: (3) 9-5-022:001, as
more particularly described and granted in DECLARATION OF
ACCESS AND UTILITY EASEMENT dated June 23,2017, recorded
as Document No. A-63970460; subject to the terms and provisions
contained therein.
-Note:- (a) The metes and bounds description shown in Item I
above is from survey dated November 30, 2016
(updated December 16, 2016 and February 26, 2017,
and revised May 7, 2019 ), by Wayne A. Subica, Jr.,
with John D. Weeks, Inc.
(b) The property described under Item I above is referred
to by Tax Map Key (3) 9-5-007-016.
Page 9 of 47
EXHIBIT
Survey of Previously Excluded Area
Being mPortion ofR.P.0882.LC.Award 0B71./\poms 10toLota
Kamehameha Situated at Kahilipali Nui, Kau, 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 "STEIN 2"beinQ 1.044.33
feat South and 4.116.75 West and running by azimuths measured clockwise from True
7. 258" 23 40" BOO.00feet along Lot 2([K8N:9-5-022:01) and Lot (Tm|K:9-5-021:015)
to the point of beginning and containing an area of2@73S
acres.
Page 10 of 47
EXHIBIT C
Conservation Easement Over The Property (excluding WWTP Location)
which is to form the basis for a conservation easement over the WWTP Location if no
WWTP is built on that WWTP Location within 10 years
LAND COURT SYSTEM REGULAR SYSTEM
Return by Mail ( X ) Pickup ( ) To:
County of Hawaii
Department of Finance
Attn: Public Access, Open Space, and Natural Resources Preservation Program
(Re: Waikapuna)
25 Aupuni Street, Suite 2103
Hilo, Hawai'i 96720
TMK: (3) 9-5-007-016 Total No. of Pages:
GRANT OF CONSERVATION EASEMENT
This Grant of Conservation Easement ("Easement") is made this day of
—, 2019 by and between Ala Kahakai Trail Association, a Hawaii nonprofit
corporation, whose mailing address is P.O. Box 2338, Kamuela, Hawaii 96743
("Grantor"), and the County of Hawaii, a political subdivision of the State of Hawaii,
whose mailing address is 25 Aupuni Street, Suite 2103, Hilo, Hawaii 96720 ("Grantee").
Page 11 of 47
RECITALS
WHEREAS, Grantor is the fee simple owner of all of that certain parcel of land
situate at Kahilipali`iki and Kahilipalinui ahupua`a, District of Ka'u, Island and County of
Hawaii, State of Hawaii, bearing Tax Map Key designation (3) 9-5-007-016 and
containing an area of 2,317.844 acres, more or less, including the historic fishing village
of Waikapuna, and more specifically described in Exhibit "A" attached hereto and made
a part hereof ("Waikapuna", "the Property", or "the Waikapuna Property"); and
WHEREAS, Grantee's Department of Environmental Management has identified
Fifteen (15) to Twenty (20) acres on the mauka portion of Waikapuna as a potential
location for the Na'alehu Wastewater Treatment Plant; and
WHEREAS, in order to allow Grantee and the Ka`u community the opportunity to
further explore this potential location, the Parties have agreed to exclude said area from
this Grant of Conservation Easement, with said excluded area more specifically
described in Exhibit "B" attached hereto; and
WHEREAS, the subject of this Grant of Conservation Easement is therefore
Waikapuna without the excluded area described in Exhibit "B" ("the Easement
Property"); and
WHEREAS, Grantor, through its board members, has been working for years
with various partners, including Native Hawaiian lineal descendants, Grantee, The Trust
for Public Land, the State of Hawaii Department of Land and Natural Resources, and
Ka`u community organizations to purchase Waikapuna, and through its work, Grantor
has gained intimate knowledge about Waikapuna and the cultural and natural resources
on the Property; and
WHEREAS, the sources of funding for Grantor's acquisition of the Property and
securing this Easement came through public and private funding sources as more
particularly described in Exhibit "C" attached hereto and made a part hereof; and
WHEREAS, the execution of this Grant of Conservation Easement is a condition
of such funding; and
WHEREAS, the Waikapuna Property has exceptional cultural, historical,
environmental, and natural significance and value as it contains 2.3 miles of
coastline that includes the ancient Alaloa footpath which once encircled the
island, also known as the Alanui or Ala Kahakai National Historic Trail, and
the Property is presently used by local fishermen, Native Hawaiian descendants, and
gatherers of various natural and marine resources for subsistence, recreational, and
cultural purposes; and
WHEREAS, there are numerous and well-preserved cultural sites on the
Waikapuna Property in addition to the coastal Alaloa, including an ancient village
consisting of heiau, burials, lava tubes, house foundations, ahu (altar), habitation caves,
petroglyphs, papamu (stone for the game konane), salt -gathering ponds, agricultural
terraces, canoe sheds, kamala (three -sided wind shelters walled with stone) and
mauka-makai trails connecting the village with Na'alehu and Waiohinu. Waikapuna was
named for the three freshwater springs that once sustained a fishing community on the
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Property, and two have been destroyed and one spring which is lined in stone remains;
and,
WHEREAS, the resonant history and stories of Waikapuna have been preserved
and passed on through the intimate knowledge and experience of revered Hawaiian
scholar Mary Kawena Pukui, who was raised by her grandmother, Nali'ipo'aimoku from
Waikapuna, who was a kahuna la'aulapa'au, midwife, and hula dancer in the court of
Queen Emma. Kawena spent her childhood summers at Waikapuna with her
grandmother. Knowledge passed down from Nali'ipo'aimoku to Kawena at Waikapuna
provided a considerable amount of the foundation upon which the 20th century
Hawaiian cultural renaissance and beyond has relied. Most notably informed by
Kawena's experience and time spent on the Ka'u coast and Waikapuna is the critical
cultural contribution of "The Polynesian Family System in Ka'u." Some of the sites and
areas Kawena describes in her book can still be clearly seen and experienced today on
the Waikapuna Property; and
WHEREAS, the Waikapuna Property includes the makai portion of two ahupua'a,
and its protection will have a significant positive continued impact on the immense
resources of Waikapuna Bay and the ocean waters. Marine and coastal resources
include a lagoon and intertidal pool complex at Waikapuna Bay which is a nursey and
refuge area for numerous marine invertebrates and fishes. The nearshore area is home
to Hawksbill and green sea turtles, whales, Hawaiian monk seals, diverse fish, limu,
crustacean, shark, and urchin populations. Many in the Ka'u community still rely on
these diverse marine resources for subsistence; and
WHEREAS, native and endangered bird and plant species thrive on the
Waikapuna Property. A massive sea cave is home to hundreds of indigenous Noio
(black noddies) and Noio Koha (brown noddies). Sea cliffs provide habitat to colonies of
endangered 'Ua'u (Hawaiian petrel), indigenous 'Ulili (wandering tattlers), indigenous
Koa'e Kea (whitetailed tropic birds), and Federal -candidate species 'Ake'ake (band
rumped storm petrels). Vegetation along the coast, covering sand dunes, and on the
cliff of Manienie Pali is primarily native and includes nohu, nehe, 'ilima papa, maiapilo
(limited remaining specimens at last survey), pili, pohuehue, and kauna'oa. The pasture
lands include remnants of a lowland dry forest through occasional native and
Polynesian -introduced trees - alahe'e, lama, wiliwili, 'ilima, naio, and noni; and
WHEREAS, local Ka'u ranchers have ranched the Property for generations,
perpetuating Ka'u's paniolo (cowboy) heritage, contributing to Ka'u's agricultural
economy, ensuring a regular knowledgeable presence on the Property, and providing
the added benefit of wildlife control to protect Waikapuna's native species and cultural
sites; and
WHEREAS, Grantor and Grantee recognize the special character of the Property
as a wahi pana (sacred or storied place) and wahi kupuna (ancient place) that is part of
a broader Hawaiian cultural landscape of Ka'u. Grantor and Grantee therefore
acknowledge a common purpose to conserve, preserve, and perpetuate, and prevent
use of the Property that would harm, the historic, cultural, agricultural, natural, marine,
scenic, open space, fresh water, and native and endemic plant and animal habitat
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importance of the Property (hereinafter referred to as the "Conservation Values" or
"Purpose"); and
WHEREAS, the specific Conservation Values of the Property are documented in
Grantor and The Trust for Public Land's County of Hawai'i PONC Nomination Form and
Conservation Easement Baseline Documentation Report shared with Grantee, both of
which provide written and photographic documentation of the Conservation Values that
the parties agree provides an accurate representation of the Property on the date that
the Conservation Easement is recorded in the State of Hawaii (the "Effective Date"),
and which is intended to serve as an objective informational baseline for monitoring
compliance with the terms of this Conservation Easement; and
WHEREAS, Grantor and Grantee collectively desire to conserve, preserve, and
protect in perpetuity the Conservation Values of the Property; and
WHEREAS, Grantor intends to establish a management plan to ensure the
conservation, preservation, and protection of the Conservation Values of the Property;
and
WHEREAS, Grantor and Grantee understand that in establishing a management
plan it will take time and resources to conduct the necessary studies and surveys
concerning the Property and its historic, cultural, agricultural, natural, marine, scenic,
open space, fresh water, and native and endemic plant and animal habitat values, and
the best feasible means of ensuring the conservation, preservation, and protection of all
these elements concerning the Property; and
WHEREAS, Grantor and Grantee desire to establish this conservation easement
as the primary foundation to perpetuate the Conservation Values of the Property.
AGREEMENT
NOW, THEREFORE, in consideration of Grantee providing to Grantor a portion of
the funding source for Grantor's acquisition of the Property, subject to the terms,
covenants and conditions of this Easement and conditioned on the granting of this
Easement to Grantee, together with other good and valuable consideration, the adequacy
and receipt of which are hereby acknowledged, and the covenants, terms, conditions,
and restrictions contained herein, Grantor hereby grants, creates, conveys, and
establishes a perpetual conservation easement for and in favor of Grantee, including its
successors and assigns, upon the Easement Property, which shall run with the land and
be binding upon Grantor, including its successors and assigns, and shall remain in full
force and effect forever, with the following terms, covenants, conditions and restrictions:
COVENANTS AND RESTRICTIONS
A. Purpose and Declaration.
Grantor and Grantee affirm that the Easement Property shall be used and maintained in
a manner consistent with this Easement. Grantor and Grantee agree that the purposes
of this Easement are to conserve, preserve and protect in perpetuity the historic, cultural,
agricultural, natural, marine, scenic, open space, fresh water, and native and endemic
Page 14 of 47
plant and animal habitat values (together, "the Conservation Values") of the Easement
Property in perpetuity.
Grantor agrees to establish a viable land management plan in the manner as set forth
below in Section C.2. for said Property.
For all the purposes set forth in herein, Grantor hereby declares and agrees that the
Easement Property is and shall be in perpetuity dedicated to the Conservation Values
and shall be held, maintained, utilized, operated, or otherwise managed by the Grantor,
its successors and assigns, in a manner consistent with the law, and further subject to
the declarations, covenants, conditions and restrictions as set forth in this Easement.
This Easement shall run with the Easement Property in perpetuity.
B. Riahts of Grantor.
Subject to existing encumbrances of record, and any limitations set forth in this
Easement, Grantor reserves all customary rights and privileges of ownership, not
granted to Grantee as to the Property including, but not limited to, the following:
1. Alienation. The right to sell, lease, and devise the Property (subject to this
Easement), subject to the provisions in Section I herein.
2. Privacy and Quiet Enioyment. The right of privacy and the right to deny
access to other persons, including without limitation the right to undertake
activities reasonably necessary to carry out the rights reserved to Grantor,
provided such actions are not inconsistent with the Purpose of this Easement;
no right of access to any portion of the Property is granted to any person by
the provisions of this Easement, except the inspection rights of Grantee as
expressly set forth in Section G of this Easement.
3. Access. The right to permit or invite others, including the general public, to
engage in, any use of, or activity on, the Property permitted by this Easement
and not inconsistent with the Purpose of this Easement, including the right to
manage public access consistent with intent of this Easement, as limited by
Section C.2.
4. Structures. The right to construct, maintain, renovate, and use structures to
permit appropriate use of the Property by the public that is not inconsistent
with the protection of the Conservation Values, and as limited by Sections
D.1., E.1. and E.2.
5. Utility Services. Wires, lines, pipes, cables or other facilities providing
electrical, gas, water, sewer, communications, or other utility services to the
improvements permitted herein may be installed, maintained, repaired,
removed, relocated and replaced, and, subject to the restrictions in Sections
D.1., E.1. and E.2., Grantor may grant easements over and under the
Property for such purposes.
6. .Motorized Vehicles and Equipment. The right to use motorized vehicles and
equipment for permitted land management activities allowed under applicable
federal, state, and county laws, including but not limited to, tractors, mowers,
ATVs, trucks, excavators, bulldozers, graders, chainsaws, chippers, and
"weed eaters" so long as such use does not harm the Conservation Values.
7. Signs. The right to post signs on the Property against trespassing and erect
identification, interpretive and warning signs.
8. Emergencies. The right to take any emergency action Grantor reasonably
believes necessary to protect human, animal or plant life, or improvements
permitted by this Easement on the Property.
9. Roads. Trails and Rights of Way. The right to establish roads, trails and
reasonable rights -of -way, including providing roadway and utility access, and
to cut trees, grass, and other vegetation to provide such access and rights -of -
way. Roadway or utility improvements made under this provision shall be
done in a manner so as to create the least possible disturbance to the
Conservation Values, and in no event shall such improvements be greater
than those allowed by governmental regulations and/or consents.
10. Affirmative Obli atc� ions. Unless otherwise specified below, nothing in this
Easement shall require Grantor to take any action to restore the condition of
the Property after any act of God or other event over which Grantor had no
control or no ability to foresee.
11. Use and Maintenance of Water Sources. The right to use and maintain water
sources, water courses and water bodies within the Property.
12. Chemical Applications. Subject to all applicable labeling requirements and
laws, the right to apply agricultural or natural resource management
chemicals to the Property for bona fide agricultural or natural resource
management purposes, in a managed careful manner that recognizes the
preference for no chemical application near Waikapuna lagoon and tidepools,
the shoreline, the freshwater spring, and food crops, and recognizes that
water moves mauka to makai from the Property directly into Waikapuna
lagoon and tidepools, and the ocean.
13. Intellectual Property. The right to own and control all Intellectual Property
rights arising from activities, studies, and research at Waikapuna, including
discoveries, findings, writings, processes, reports, research results, images
and materials prepared, whether or not patentable or eligible for trademark or
copyright protection ("Project Information").
14. Patent, Trademark and Copyright. The right to prepare, file and maintain
patent, trademark and/or copyright application with respect to Project
Information;.
Page 16 of 47
15. Fences. Fences may be maintained and replaced, and new fences installed if
they are necessary (i) for agricultural operations on the Property; (ii) to mark
boundaries of the Property; or (iii) to protect any cultural sites and natural
resources on the Property.
16. Agricultural Production. The production, processing, and marketing of
agricultural crops and livestock is allowed, provided that it is conducted in a
manner which must (a) preserve the sense of place within the Property and
(b) promote the conservation, preservation, and protection of the
Conservation Values. The Parties acknowledge a shared strong preference
for agriculture that produces healthy food for the Hawai'i market, including
ranching to produce beef for the Hawai'i market, and farming of produce for
the local market. The Parties also acknowledge that growing native and/or
endangered plants on the Property for planting on the Property or taking to
market is an agricultural use that supports the Conservation Values. The
Parties acknowledge that pesticides and fertilizer used in agricultural
production on the mauka portion of the Property could harm the marine,
freshwater, and native habitat resources on the makai portion of the Property.
Grantor shall avoid use of pesticides and fertilizers that will likely affect the
marine, freshwater, and/or native habitat resources.
17. Other Rights. Any other rights consistent with the Purpose of this Easement
set forth in Section A of this Easement and not specifically prohibited or
limited by this Easement.
C. Use of the Property. Grantor agrees to use the Property in accordance with the
following provisions.
Compliance with the Law and Easement. Grantor acknowledges and agrees
to use the Property in a manner consistent with all federal, state and county
laws including, without limitation, land use and zoning laws, rules, and
regulations (collectively referred to herein as the "law") and further subject to
the declarations, covenants, conditions and restrictions set forth in this
Easement.
2. Land Management Plan. Grantor agrees to work with Grantee to develop a
written land management plan for the Property ("Management Plan") in
accordance with the following parameters.
a. Timing. Grantor shall develop the Management Plan within eighteen
(18) months from the Effective Date. Any extension of the deadline for
the Management Plan shall require the written approval of Grantee. In
developing the Management Plan, Grantor agrees to consult with
Grantee during all major phases in the development of the
Management Plan, and to give best efforts to meaningfully incorporate
Grantee's feedback before finalizing the Management Plan. The final
adoption of the Management Plan shall be by consensus involving
Grantor and Grantee. Grantee's review and approval of the
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Management Plan shall be exercised in good faith with timely
diligence. The failure or inability of the Grantor and Grantee to agree
on the Land Management Plan shall not invalidate this Easement.
b. Management Plan Elements. The following baseline surveys and
studies and plans for the Property shall comprise the key elements of
the Management Plan.
The baseline elements of the Management Plan shall be
comprised of the following baseline studies and surveys to the
extent that resources permit:
1. The Waikapuna Conservation Easement Baseline
Documentation Report;
2. A terrestrial flora and fauna survey;
3. Cultural and historic land documentation and reports; and
4. A Phase 1 environmental site assessment.
ii. Plan for the conservation, preservation, and protection of the
historic, cultural, agricultural, natural, scenic, marine, open
space, fresh water, and native and endemic plant and animal
habitat elements and values of the Property.
iii. Plan for restoration, to the extent applicable and appropriate, of
any archaeological, cultural, or historic features that may be
currently known or discovered in the future.
iv. Plan for the encouragement, and propagation, where appropriate,
of native and endemic plant and animal species.
v. Plan for the reception of and protocols regarding Hawaiian
cultural practitioners who wish to access the Property to engage
in their cultural and religious practices and beliefs.
vi. Plan for education of trail users on the Alaloa entering the
Waikapuna Property on foot. The Parties acknowledge that there
is public pedestrian access on the Alaloa.
vii. Plan for Managing Community Access to the Property. The
Parties acknowledge that the Ka'Q community accesses the
Property for subsistence fishing and gathering, family camping on
public property at the shoreline, and perpetuation of Ka'Q
traditions. In the past, this Ka'Q community access is typically
provided to one Ka'O camping group per weekend, who are
required to sign a waiver acknowledging that they are aware of
the dangerous ocean conditions, lack of fresh water, restroom
facilities, trash collection, life guards and emergency services,
Page 18 of 47
and steep unimproved dirt roads leading down to Waikapuna Bay
which require a reliable Four Wheel Drive if accessing by vehicle.
viii. Plan for Managing Educational Access Days. In addition to
access for Hawaiian cultural practitioners, hikers on the Alaloa,
and Ka`u community access, the Management Plan will include a
plan for educational access to the Property for at least one (1)
specified day per year to further the purpose of this Easement,
provided the plan of access will include the following minimum
requirements: (1) safe access to the Property and safety best
practices for all general public participants and volunteers shall
be given the highest priority; and (2) conservation, preservation,
and protection of the historic, cultural, agricultural, natural,
marine, scenic, open space, fresh water, and native and endemic
plant and animal habitat elements and values of the Property
during all educational access activities shall be paramount with
the establishment of proper protocol and safety procedures.
From the Effective Date until the adoption of the Management
Plan, Grantor will use best efforts to maintain reasonable interim
safe access and conservation measures, will use best efforts to
continue providing managed community and cultural access, and
will provide at least one (1) educational access day per year until
the adoption of the Management Plan.
ix. Guidelines and standards for the possible renovation and reuse
of the three existing structures on or partially on the Property; and
establishment in the future of any cultural or agricultural
structures, all of which must (a) preserve the sense of place within
the Property and (b) promote the conservation, preservation, and
protection of the Conservation Values.
x. Plan for the maintenance of existing roads, trails, and utilities; and
for any necessary additional roads, trails and utilities.
xi. Plan for Fire Prevention and Management.
c. Management Plan Review and Adoption. The standards and
guidelines under which the parties agree to review and ultimately
adopt by consensus the Management Plan are as follows:
The Management Plan must fulfill the Purpose of this
Easement.
The Management Plan shall include all of the
Management Plan Elements provided hereinabove.
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iii. The Management Plan shall include a projected cost of
management on a rolling three (3) to five (5) year basis,
with projected annual budgets for each new year.
iv. The Management Plan shall incorporate the Conservation
Values of the Property.
d. Annual Report. Grantor shall provide Grantee with an annual self -
monitoring report that is substantially similar to the State Legacy Land
Conservation Program Grant Recipient Self Report Form and provide a
copy of said annual self -monitoring report to the State Legacy Land
Conservation Commission. In each annual self -monitoring report,
Grantor will include the dates of the educational access day(s), and any
additional access opportunities provided by Grantor. Each annual report
shall also detail any requests received for cultural or community access,
and shall specify Grantor's response to, and handling of, each such
request for community access in sufficient detail to demonstrate
Grantor's best efforts to accommodate such requests. Grantor's annual
written report will assist Grantee to monitor compliance with this
Easement and will not create significant additional work for Grantor.
Grantor shall also provide Grantee with a copy of any State Legacy Land
Conservation Program Grant Recipient Self Report Form required by the
State Legacy Land Conservation Program.
e. 10-Year Review. The Management Plan is a living document. Grantor
and Grantee agree to review the Management Plan at least once a year
to ensure that the mission and purpose of the Easement are effectively
being met. Grantor shall review The Management Plan at least every
ten (10) years commencing from the date of the adoption of the
Management Plan to consider possible amendment and restatement of
the 1 0-year Management Plans. Grantor shall not engage in any action
that materially deviates from the Management Plan unless adopted by
consensus among the parties hereto.
3. Environmental Assessment or Other Study. In the event that an environmental
assessment under Hawai'i Revised Statutes Chapter 343 or any other study
arising from law or court order is required for or in any way related to the
Property, or any part thereof ("Environmental Assessment"), the Grantor and
Grantee agree as follows:
a. Grantor shall fully comply with every law or final court order applicable
to the use and occupation of the Property as described in this
Easement;
Page 20 of 47
b. Grantor shall assume full responsibility for paying the cost of any
Environmental Assessment, study, survey, permit and/or inspection
required by law or by any final court order;
C. Grantee shall bear no responsibility to pay the cost of any requirement
described in this Section C.3; and
d. Grantor shall use its best efforts to remove any encumbrance on title
arising from any final judgment affecting the Property.
D. Uses and Activities Inconsistent With the Purpose of the Easement; Default.
Limitations on Uses and Activities. Grantor shall not use the Easement
Property in any manner inconsistent with this Easement, including without
limitation all of its declarations, covenants, conditions, and restrictions.
Without limiting the generality of the foregoing, the following uses of, or
activities on, the Easement Property, though not an exhaustive list of
inconsistent uses or activities, are inconsistent with the Conservation
Values and Purposes of this Easement and shall be prohibited, except as
expressly provided herein.
a. Subdivision. Grantor shall not subdivide or submit the Easement
Property to a condominium property regime (CPR).
b. Structures. Grantor shall limit development on the Easement
Property to three (3) structures, which is the number of structures
currently on the Property, excluding water tanks, water troughs,
interpretive kiosks, and compost toilets. Since the three (3)
structures — (a) an old piggery approximately 30 meters x 8 meters,
(b) an old bunkhouse approximately 12.3 meters x 3.5 meters, and
(c) an old ranch office, workshop, and storage area, approximately
52 meters by 23 meters (partially collapsed), on the Easement
Property were built across TMK lines that are now owned by
different entities, the location of the structures can be changed, but
the location must not adversely impact the sense of place within the
Easement Property and must not adversely impact the
Conservation Values. If new structures are to replace any existing
structures (and the existing/old structures must be removed
following all applicable laws), the cumulative footprint of any new
structures will not exceed the cumulative footprint of the existing
three structures. Re -located and new structures must be limited in
purpose to (a) preserve a sense of place within the Easement
Property and (b) perpetuate the Purpose of this Easement.
Possible structures are a ranch building to aid in the furtherance of
ranching and/or farming, a building to store equipment for
restoration work on the land such as removal of invasive species
and planting of native species, a greenhouse to start native species
for outplanting on the Property, and a community
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gathering/cultural/science and/or interpretive structure, which may
be a modern structure or a traditional Hawaiian halau/hale, or a
combination of the two. The aforementioned potential structures are
not intended to be an exhaustive list. Grantor shall not construct
any dwelling unit or lodging unit, including cabins or other
temporary lodging, on the Property, except a modest caretaker's
unit may be included in one of the allowed three (3) structures to
facilitate longer stretches of work by restoration staff or volunteers
on the Property. Re -location of existing structures and any new
replacement structures will be limited to the northeast corner of the
property, and shall not adversely impact any of the Resource
Values for which this Conservation Easement is established.
Commercial Activities. Grantor shall not engage in any commercial
activities on the Property, except that Grantor may: 1) ranch, farm,
or lease the Property for agriculture with a strong preference toward
agriculture that adds to the local food market; 2) lease the Property
for installation and operation of telecommunication facilities; and 3)
harvest, and cook on the Property, provided that the
aforementioned activities will not significantly impact the
Conservation Values. Grantor may also conduct film and
photography in a manner consistent with the Purpose and that does
not significantly impact the Conservation Values. Prohibited
commercial activities shall not include programs and activities on
the Property that (a) preserve a sense of place within the Property
and (b) perpetuate the Purpose of this Easement.
d. Entrance fees. No fees shall be charged for entrance or admission
to the Property. Entrance fees shall not include nominal fees or
donations associated with programs and materials provided by
Grantor.
e. Mineral extraction. Grantor shall not engage in any mineral extraction
activities on the Property.
f. Erosion or Water Pollution. Any use or activity on the Easement
Property that causes or is likely to cause significant soil degradation
or erosion or significant pollution of any surface or subsurface
waters.
g. Water Rights. Grantor recognizes the traditional and customary
usage of water and the critical function of freshwater in Waikapuna's
history. Grantor shall not transfer, encumber, sell, lease or otherwise
separate any water or water rights appertaining to the Property or
change the traditional and customary and historic use of the water in
Waikapuna. Grantor shall not abandon or allow the abandonment of,
by action or inaction, any of the water or water rights for the Property.
Page 22 of 47
h. Limitation on Impervious Surfaces. Impervious surfaces will not
exceed one -tenth of one percent (0.1 %) of the total area contained
within the Easement Property, as determined by survey of the
Easement Property. "Impervious surfaces" are defined as material
that does not allow water to percolate into the soil on the Easement
Property; including, but not limited to, residential buildings,
agricultural buildings with or without flooring, paved areas, and any
other surfaces that are covered by asphalt, concrete, or roofs.
2. Default. Any one or more of the following events shall constitute an
"Event of Default":
a. Grantor shall fail to comply with the law and covenants, conditions
and restrictions set forth in of this Easement;
b. Grantor shall fail to develop and comply with the requirements
relating to a Management Plan as set forth in Section C.2 herein;
C. Grantor shall become bankrupt or insolvent or shall make an
assignment for the benefit of creditors, or file any debtor
proceedings;
d. Grantor shall abandon the Property or any estate or interest
hereunder to be taken under any writ of execution.
Upon an Event of Default, Grantee shall have the right to exercise the affirmative
rights and remedies provided in Sections G and H herein.
E. Activities and Uses on Property Requiring Grantee's Approval.
The following activities and uses are permitted on the Easement Property only upon
receiving approval by Grantee pursuant to the approval procedures set forth in Section
J.1.:
Construction Activities. Demolition or construction of any structure. Grantor
and Grantee understand that the Property is within the Special Management
Area (SMA), and Grantor understands that Hawai'i Revised Statutes (HRS)
Chapter 205A, the Coastal Zone Management (CZM) law, requires Grantor to
receive a SMA permit before any demolition or construction on the Property.
The Parties acknowledge that the utmost care must be taken to protect the
Property's many cultural sites in any construction activity, and Grantor shall
follow all legal requirements and best archaeological practices. This section
does not apply to fences or agricultural water troughs and systems.
2. Dwelling. Use of any structure as a dwelling, such as by an onsite caretaker.
3. Non -Prohibited Commercial Activities. Activities and uses which are not
specifically identified as allowable exceptions in Section D.1. of this Easement,
but that Grantor believes are nonetheless warranted because they would not
significantly impact the Conservation Values of the Property, would afford
Page 23 of 47
Grantor supplemental financial or other opportunities, which may assist in
assuring the economic viability of the primary activities that benefit or protect
the Conservation Values, and Grantor believes the proposed activities and
uses comply with Section D. in that they (a) preserve a sense of place within
the Property, and (b) perpetuate the Purpose of this Easement.
4. New Roads. Creation of a new unpaved road or trail, and/or any paving of an
existing or new road or trail. The Parties acknowledge that as there are existing
dirt roads through the Property, historic trails through the Property that connect
to the Alaloa (Ala Kahakai), and numerous cultural sites throughout the
Property, the Parties' shared strong preference is to not create any new roads
through the Property, and to keep all roads and trails unpaved.
F. Grantee's Riahts and ObIllioations.
Grantee shall ensure Grantor's compliance with this Easement, including without
limitation, the declarations, covenants, conditions, and restrictions set forth in this
Easement. Grantee shall monitor and enforce this Easement.
Grantee shall have the responsibility for the stewardship and monitoring of this
Easement, determining if a violation has occurred, and for considering and replying to all
approval requests pursuant to the Easement. These duties may be fulfilled directly by
Grantee or its agent. Grantee is responsible for any costs incurred in enforcing the terms
of this Easement, including any attorney's fees and any costs of suit. Grantee can recover
costs from Grantor or a third party as described in Grantee's Remedies below.
G. Affirmative Rights Conveyed to Grantee.
To accomplish the Purpose of this Easement the following rights are conveyed to
Grantee:
1 Protection. Grantee has the right to preserve and protect in perpetuity the
Conservation Values of the Easement Property, and to prevent any use of, or
activity on, the Easement Property that will significantly impair or interfere with
the Purpose of the Easement.
2. Right of Entry. Subject to the limitations set forth below, Grantee, or its agent,
has the right to enter the Property at reasonable times to carry out the Purposes
of this Easement and as further described below:
a. Annual Monitoring Upon fourteen (14) days prior Notice to Grantor (in the
manner set forth set forth in Section J.4.), and without unreasonably
interfering with Grantor's use of the Property, Grantee has the right to
enter upon the Property, at reasonable times and in a reasonable manner
in order to monitor Grantor's compliance with, and otherwise enforce the
terms of, this Easement; provided that in the absence of evidence which
gives Grantee a reasonable basis to believe there has been a violation of
the provisions of this Easement (which evidence shall be made available
to Grantor at the time of such Notice and request to enter the Property),
Page 24 of 47
such entry shall not occur more often than once per year. The Parties
acknowledge that they have a positive working partnership, and Grantor
may invite Grantee to join an educational or cultural access in addition to
the Annual Monitoring.
b. Emergency Entry. Where Grantee has a reasonable belief that a violation
of the Easement is occurring or has occurred or that there is a significant
and imminent threat to the Purpose of this Easement, or to public safety,
Grantee has the right but not the obligation to enter the Property for the
purpose of mitigating or terminating the violation or obtaining evidence for
the purpose of seeking judicial enforcement of the Conservation
Easement. Possible violations or threats to public safety giving rise to
Grantee's entry right include, but are not limited to, trespass onto the
property, any criminal activity, and any activity on the Easement Property
that harms or could harm the Conservation Values, including, but not
limited to, lack of maintenance, and harm or potential harm to the cultural
resources and/or rare and endangered native species. Grantee has the
right but not the obligation to remain or have a regular presence on the
Easement Property, and to actively manage the Easement Property, for
as long as necessary to mitigate or terminate the violation, or obtain
evidence for the purpose of seeking judicial enforcement of the
Conservation Easement. Such entry shall be without notice. However,
where time permits, Grantee shall make good faith efforts to provide at
least twenty-four hours' Notice to Grantor in the manner set forth in
Section J.4. for emergencies.
3. Enforcement. Grantee has the right to enforce this Easement and the
covenants and restrictions herein, including, but not limited to, the right to enjoin
any use of, or activity on, the Easement Property that is inconsistent with the
Purpose of this Easement, and to require the restoration of such areas or
features of the Easement Property as may be damaged by uses or activities
inconsistent with the provisions of this Easement. Grantor and Grantee agree
to engage in alternative dispute resolution methods, such as mediation, as
preferred methods of resolving any and all disputes. A good faith effort shall
be made by all parties to avoid the costs of litigation, if this can reasonably be
accomplished without harming or threatening the Conservation Values,
Purpose of this Easement, or Grantor's property rights.
a. Notice of Violations Corrective Action, Opportunity to Cure. If Grantee
determines that Grantor is in violation of the terms of this Easement or
that a violation is threatened, Grantee shall give written Notice to Grantor
(in the manner set forth in Section J.4.) of such violation and may demand
corrective action sufficient to cure the violation (within the permitted time
periods set forth in Section G.3.b. below) and, where the violation involves
injury to the Easement Property resulting from any use or activity
inconsistent with the Purpose of this Easement, require Grantor to restore
Page 25 of 47
the portion of the Easement Property so injured to its prior condition in
accordance with a plan approved by Grantee.
b. Grantor's Failure to Cure. Grantee may bring an action as provided in this
Section if Grantor:
Fails to cure the violation within thirty (30) days after receipt of
Notice thereof from Grantee; or
Under circumstances where the violation cannot reasonably be
cured within the thirty (30) day period, fails to begin curing such
violation within the thirty (30) day period and fails to continue
diligently to cure such violation until finally cured.
H. Grantee's Remedies; Damages.
Subject to the limitations set forth in this Grant of Conservation Easement,
Grantee's rights and remedies identified in this Section apply equally in the event of either
actual or threatened violations of the terms of this Easement and shall be cumulative and
shall be in addition to all remedies now or hereafter existing at law or in equity.
Grantee's Action.
a. Injunctive Relief. Grantee may bring an action at law or in equity to enforce
the terms of this Easement:
i. To enjoin the violation -- including ex parte, to the extent
permitted by procedural rules of the court — by temporary,
preliminary or permanent injunction; and
ii. To require the restoration of the Easement Property to the
condition that existed prior to any such injury.
b. Damages., Grantee shall be entitled to recover damages for any breach
by Grantor of the terms of this Easement or injury to any of the
Conservation Values protected by this Easement, to the extent such
damages may be ascertained, including without limitation, any and all
costs for enforcement of the terms so breached. Without limiting Grantor's
liability in any way, Grantee may apply any damages recovered to the cost
of undertaking corrective or restoration action on the Easement Property.
Grantor is barred from using this provision regarding damages as an
affirmative defense against Grantee's rights to injunctive relief.
c. No Bond Required. Any action for injunctive relief or damages may be
taken without Grantee being required to post bond or provide other
security. Grantor is barred from using this provision regarding damages
as an affirmative defense against Grantee's rights to injunctive relief.
d. Possible Dissolution of Grantor. In the event there is a plan of dissolution
of Grantor, or Grantor is otherwise dissolved while holding the Property,
Page 26 of 47
and if the terms of the dissolution fail to provide a successor, then Grantor,
Grantor's surviving officers, or Grantee may institute in a court of
competent jurisdiction a proceeding to appoint an appropriate successor
to Grantor, provided however, that any transfer of Grantor's interest shall
remain subject to the approval of the State of Hawai'i Board of Land and
Natural Resources and Grantee.
2. Grantee's Forbearance. Forbearance by Grantee to exercise its rights under
this Easement in the event of any breach of any terms of this Easement by
Grantor, its agents, employees, contractors, invitees or licensees shall not be
deemed or construed to be a waiver by Grantee of such term or any of
Grantee's rights under this Easement. No delay or omission by Grantee in the
exercise of any right or remedy upon any breach by Grantor shall impair such
right or remedy or be construed as a waiver.
3. Waiver of Certain Defenses. Grantor acknowledges that it has carefully
reviewed this Easement and has consulted with and been advised by counsel
of its terms and requirements. In full knowledge of the provisions of this
Easement, Grantor hereby waives any claim or defense it may have against
Grantee under or pertaining to this Easement based upon waiver, laches,
estoppel, or prescription.
4. Acts Beyond Granto►'s Control: Emergency Conditions. Nothing contained in
this Easement shall be construed to entitle Grantee to bring any action against
Grantor to abate, correct, or restore any condition on the Property or to recover
damages for any injury to or change in the Property resulting from causes
beyond Grantor's control, including, without limitation, fire, flood, storm, earth
movement, tsunami, any other act of God, vandalism, terrorism, condemnation,
and/or for acts of trespassers, that Grantor could not reasonably have
anticipated or prevented, or from any prudent action taken by Grantor under
emergency conditions to prevent, abate, or mitigate significant injury to the
Property resulting from such causes or to protect bona fide public health or
safety in an emergency situation.
1. Provisions Required by the Board of Land and Natural Resources.
Grantor and the State of Hawai'i Board of Land and Natural Resources have
entered into an agreement relating to the Property, identified as "State of Hawai'i Legacy
Land Conservation Program Grant Agreement Number 66886," dated May 10, 2018, as
amended, ("LLCP Agreement"). Section 7 of Attachment 1 of the LLCP Agreement
requires Grantor to include the following additional terms in this Easement, which are by
incorporation below and made a part hereof:
"The fee interest that this conservation easement encumbers has been
acquired with funds from a grant by the State of Hawaii, Department of
Land and Natural Resources, Legacy Land Conservation Program
("LLCP") through grant agreement number 66886, dated May 10, 2018, as
Page 27 of 47
amended, and is subject to all of the terms and conditions of the grant
agreement.
The Holder of the conservation easement shall also be subject to the
terms and conditions of the grant agreement to the extent applicable
under the holder's rights and responsibilities under the conservation
easement.
The Grantor covenants that the property shall be managed consistently
with the purposes for which it was awarded a LLCP grant and Chapter
173A, Hawaii Revised Statutes.
The Holder, for itself, its successors and assigns, and in consideration of
the LLCP grant, does hereby covenant that it shall not dispose of,
encumber its title or other interests in, or convert the use of this
conservation easement without the written approval of the DLNR or its
successor agencies.
The Holder further covenants that whenever this conservation easement is
sold by the Holder, that portion of the net proceeds (sale price less actual
expenses of sale) of such sale, equal to the proportion that the state grant
bears to the original cost of the property, shall be paid to the State of
Hawaii."
J. Approval; Breach; Compliance Certificates.
1. Approval by Grantee. Whenever this Easement requires Grantor to obtain
Grantee's approval before taking an action, Grantor shall follow the procedures
set forth in this Section.
a. Approval Procedures. Grantor shall request approval from Grantee in
writing. The request for approval shall describe the nature, scope,
location, timetable, identify its conformity with this Easement, and, when
applicable, evidence conformity with existing land use regulations, and
any other material aspect of the proposed activity. Delivery of the request
shall conform to the service methods set forth in Section J.4. Grantee shall
have sixty (60) days from receipt of the request in which to approve,
disapprove, or approve subject to modification, the request. In the case of
withholding of approval, Grantee shall notify Grantor in writing with
reasonable specificity of the reasons for withholding of approval, and the
conditions, if any, on which approval might otherwise be given.
Page 28 of 47
b. Standard of Approval. Grantee shall not unreasonably withhold or delay
approval of a proposed use or activity requiring approval under this
Conservation Easement where the proposed activity or use will not
significantly impact the Conservation Values, or this Easement's managed
access requirements.
2. Breach of Approval Provisions If Grantor undertakes without approval any
action for which Grantee's approval is required under this Easement, Grantor
shall be deemed to be in material breach of this Easement and Grantee shall
be entitled to such rights or remedies as may be available under Section H of
this Easement. Should such a material breach occur, Grantor and Grantee
may, at Grantee's sole and absolute discretion, discuss whether a cure of the
breach is possible and, if so, under what circumstances.
3. Compliance Certificates. Grantee, or its successor, as the steward and enforcer
of this Easement shall, within sixty (60) days of a request by Grantor, execute
and deliver to Grantor, or to any party designated by Grantor, any document,
including an estoppel certificate, that certifies Grantor's compliance or lack
thereof with any obligation of Grantor contained in this Easement and otherwise
evidences the status of this Easement. Such certificate shall be binding upon
Grantee. Such certification shall be limited to the condition of the Property as
of the most recent inspection carried out by Grantee. If Grantor requests more
current documentation, Grantee shall conduct an inspection, at Grantor's
expense, within sixty (60) days of receipt of Grantor's written request.
4. Notices and Responses. Any notice, demand, request, consent, approval, or
communication (collectively "Notice") that either party desires or is required to
give to the other shall be in accordance with the following procedures.
a. In ordinary circumstances, the Notice shall be in writing and either served
personally or sent by certified mail, return receipt requested, postage
prepaid, with a copy by electronic mail, addressed to the appropriate
party, at the appropriate address set forth below in this Section, Where
Notice is served by certified mail, the receipt of Notice shall be considered
to have occurred upon the elapse of six days after mailing.
b. In emergency circumstances, the party shall provide Notice by electronic
mail and shall also make best efforts to deliver the Notice in writing
personally. Where Notice is served by electronic mail, the party serving
the Notice shall, in addition, make concurrent attempts to notify the other
party by telephone of the Notice, and attempt to receive oral or written
confirmation from the party or the party's attorney that the Notice has been
received.
c. Notices may also be served by any other method mutually agreed to
between the parties in writing, signed by all parties.
Page 29 of 47
d. Notices shall be served at the following
entities, and/or other addresses as the
designate by written notices to the others:
To Grantor:
Ala Kahakai Trail Association
Attn: Waikapuna Resource Manager
P.O. Box 2338
Kamuela, HI 96743
Phone: (808) 351-6279
Email: fox@alakahakaitraii.org
To Grantee:
addresses or to such persons,
Darties from time to time shall
The County of Hawaii
Department of Finance
Property Management Division
Attn: Property Manager (Regarding Waikapuna)
25 Aupuni Street, Suite 1101
Hilo, HI 96720
Phone: (808) 961-8009
Email: hventura@hawaiicounty.gov
With an additional copy to:
Department of the Corporation Counsel
Attn: Public Access, Open Space, and Natural Resources
Preservation Commission
(Regarding Waikapuna)
Hilo Lagoon Centre, 101 Aupuni Street, Unit 325
Hilo, HI 96720
Phone: (808) 961-8251
Email: corpcounsel@hawaiicounty.gov
K. Costs, Liabilities and Insurance, Taxes, Environmental Compliance and
Indemnification.
Costs, Legal Requirements, Liabilities and Insurance. Grantor retains all
responsibilities and shall bear all costs and liabilities of any kind related to the
ownership, operation, upkeep, and maintenance of the Property, including the
maintenance of insurance coverage that is reasonable under the
circumstances. Grantor shall cause, at Grantor's expense, for Grantee to be
named as additional insureds on the policy or policies obtained. Grantor and
Grantee release and relieve the other, and waive their entire right to recover
for loss or damage to the extent that the loss or damage is covered by
proceeds of the injured party's insurance. This waiver applies whether or not
Page 30 of 47
the loss is due to the negligent acts or omissions of Grantor or Grantee.
Grantor remains solely responsible for obtaining any applicable governmental
permits and approval for any activity or use permitted by this Easement, and
any such activity or use shall be undertaken in accordance with all applicable
federal, state, and local laws, regulations, and requirements. Nothing in this
Easement shall relieve Grantor of complying with all applicable federal, state,
and local laws, regulations, and requirements.
2. Indemnity. Grantor shall indemnify, hold harmless and defend Grantee, its
officers, directors, employees, agents, invitees, and contractors of Grantee,
and its heirs, successors, and assigns (collectively "Grantee's Parties"), for any
and all liabilities, claims, demands, losses, expenses, damages, fines, fees,
penalties, suits, proceedings, actions and causes of action or sanctions
asserted by or on behalf of any person or governmental authority, and other
liabilities (whether legal or equitable in nature and including, without limitation,
court costs, and reasonable attorneys' fees and attorneys' fees on appeal) to
which Grantee or Grantee's Parties may be subject or incur relating to the
Property, which may arise from Grantor, its officers, directors, employees,
agents, invitees, contractors of Grantor, and each of the successors and
assigns of such parties (collectively "Grantors Parties") negligent acts or
omissions or Grantor's or Grantor's Parties breach of any representation,
warranty, covenant, agreements contained in this Easement, or violations of
any federal, state or local laws, including all Environmental Laws.
3. Taxes. Grantor shall pay before delinquency all taxes, assessments, fees, and
charges of whatever description levied on or assessed against the Property by
competent authority (collectively "Taxes"), including any taxes imposed upon,
or incurred as a result of, this Easement. If Grantor fails to pay any Taxes when
due, Grantee is authorized, but in no event obligated, to make or advance such
payment of Taxes upon three (3) days prior written Notice to Grantor, in
accordance with any bill, statement, or estimate procured from the appropriate
authority, without inquiry into the validity of the Taxes or the accuracy of the
bill, statement or estimate, and the obligation created by such payment shall
bear interest until paid by Grantor at the maximum rate allowed by law.
4. Environmental Warranty and Remediation.
a. Grantee acknowledges and understand that Grantor has taken ownership
of the Property on the assumption that the Property is without any existing
recognized environmental condition. Grantor warrants that Grantor has no
actual knowledge of a release or threatened release of any Hazardous
Materials on, at, beneath or from the Property exceeding regulatory limits.
Grantor has obtained a Phase I Environmental Site Assessment dated
August 23, 2019 which found no recognized environmental conditions.
b. Grantor shall be responsible for any Hazardous Materials contributed after
the Effective Date.
Page 31 of 47
C. If at any time, there occurs, or has occurred, a release in or on the
Property of a Hazardous Material, Grantor agrees to take all steps
necessary to assure its containment and remediation, including any
cleanup that may be required, unless the release was caused by Grantee.
d. Grantor agrees to follow the recommendations in Section 10 (Findings,
Opinions, and Conclusions) of the Phase I Environmental Site
Assessment dated August 23, 2019.
e. For purposes of this Easement, "Hazardous Materials" means any
materials, discharges or other substance governed by the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C.
Sec. 9601 et seq. ("CERCLA'), The Resource Conservation and
Recovery Act, 42 U.S.0 sec. 6901 et seq. ("RCRA) The Superfund
Amendments and Reauthorization Act, 42 U.S.C. Sec. 9601 et. seq.
("SARA') or any other federal or state based statutory, regulatory or
common law cause of action) related to environmental matters or liability
with respect to or affecting the Property.
L. Transfer; Amendment; Extinguishment.
1 Transfer of Property Grantor may not transfer, assign, or otherwise convey the
Easement Property without the prior written consent of the Grantee. Grantor
agrees to incorporate by reference the terms of this Easement in any deed or
other legal instrument by which Grantor transfers any interest in all or a portion
of the Easement Property, including, without limitation, a leasehold interest. If
Grantor is preparing for dissolution or dissolves, is unable to carry out the terms
of this Easement and desires to transfer the Easement Property to another
entity that would be able to carry out the terms of this Easement, or believes
that another entity is better suited to carry out the terms of this Easement and
desires to transfer the Easement Property, or for any other reason desires to
transfer the Easement Property, Grantor must consult with Grantee in a timely
fashion as to the need or desire to transfer the Easement Property to another
entity, the timeframe of a potential transfer of the Easement Property, potential
entities that could carry out the terms of this Easement, and other relevant
factors. Any such transfer is subject to Grantee's consent and such consent
shall not be withheld if the transferee is a like entity that has capacity to own
and steward the Easement Property, and adhere to the terms of this Easement;
has experience caring for and/or restoring ancient trail systems, native habitats
and marine resources; has a longstanding and deep understanding of Hawaiian
cultural heritage and history, and proper Hawaiian protocol and practices to
care for Hawaiian cultural sites; has demonstrated experience in involving
community including schools, Native Hawaiian cultural practitioners, and the
broader public; and the ability to appropriately care for the Conservation Values
of the Easement Property. The nonprofit The Trust for Public Land that
facilitated this conservation easement and prior fee purchase by Grantor may
be available as a resource for Grantor and Grantee if a transfer of the Property
Page 32 of 47
is considered in the future. The failure of Grantor to perform any act required
by this paragraph shall not impair the validity of this Easement or limit its
enforceability in any way.
2. Limitations on Amendment. This Easement may not be modified, amended, or
otherwise changed in any manner, except by a written amendment executed
by Grantor and Grantee, or their successors in interest, it being understood that
neither Grantor nor Grantee shall ever be obligated to negotiate or enter into
any such amendment. If circumstances arise under which an amendment to
this Easement would be appropriate, Grantor and Grantee may jointly amend
this Easement; provided that no amendment shall be allowed that shall affect
the qualification of this Easement or the status of Grantee under any applicable
laws, including Hawaii Revised Statutes Chapter 198 or Section 170(h) of the
Internal Revenue Code of 1986, as amended (or with the Purpose of this
Easement), shall not affect its perpetual duration, shall be in accordance with
the Assignment of Rights referred to in Section M below and shall be recorded
in the State of Hawaii Bureau of Conveyances or the Land Court, as
appropriate. Furthermore, this Easement may only be amended or modified in
furtherance of the Purpose of this Easement and Conservation Values
described herein.
3. Limitations on Extinguishment. If circumstances arise in the future that render
the Purpose of this Easement impossible to accomplish, including but not
limited to the inability of Grantor and/or a court appointed receiver to locate a
successor to Grantor qualified to own and steward the Property in accordance
with this Easement, this Easement can be terminated or extinguished, whether
with respect to all or part of the Easement Property, only by judicial proceedings
in a court of competent jurisdiction. The parties to this Easement shall take
steps to avoid or mitigate harm to the Conservation Values, and/or use any
proceeds in a manner consistent with the Purpose of this Easement.
4. Condemnation. If all or any part of the Easement Property is proposed to be
taken under the power of eminent domain, Grantor and Grantee shall work with
the State of Hawai'i and join in appropriate proceedings at the time of such
proposed taking to recover the full value of their respective interests in the
Easement Property subject to the taking and all incidental or direct damages
resulting from the taking. All expenses reasonably incurred by the parties to
this Easement in connection with such taking shall be paid out of the recovered
proceeds. The parties to this easement shall take steps to avoid or mitigate
harm to the Conservation Values, and/or use any proceeds in a manner
consistent with the Purpose of this easement.
M. Provisions Required by County of Hawaii Charter.
a. This easement was acquired with moneys from the Public Access, Open
Space, and Natural Resources Preservation Fund. It shall be held in
pereetuity for the use and enjoyment of the ieople of Hawaii County and
may not be sold, mortgaged, traded or transferred in any way.
Page 33 of 47
N. General Provisions.
Reasonableness Standard. Grantor and Grantee shall follow a reasonableness
standard and shall use their best efforts to make any determinations that are
necessary or are contemplated to be made by them (either separately or jointly)
under this Easement in a timely manner and shall cooperate with one another
and shall take all other reasonable action suitable to that end.
2. Controlling Law. The interpretation and performance of this Easement shall be
governed by the laws of the State of Hawaii and any applicable federal law.
3. Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Easement shall be liberally construed to fulfill the Purpose
of this Easement and the policy and purpose of HRS Chapter 198. If any
provision in this instrument is found to be ambiguous, an interpretation
consistent with the Purpose of this Easement that would render the provision
valid shall be favored over any interpretation that would render it invalid.
4. SeverabilitY. If any provision of this Easement, or its application to any person
or circumstance, is found to be invalid, the remainder of the provisions of this
Easement, or the application of such provision to persons or circumstances
other than those as to which it is found to be invalid, as the case may be, shall
not be affected.
5. Entire Agreement. This instrument sets forth the entire agreement of the parties
with respect to the Property and supersedes all prior discussions, negotiations,
understandings, or agreements between Grantor and Grantee relating to the
Property, all of which are merged into this Easement. No alteration or variation
of this instrument shall be valid or binding unless contained in an amendment
that complies with Section L.2.
6. No Forfeiture. Nothing contained in this Easement shall result in a forfeiture or
reversion of Grantor's title in any respect.
7. Successors and Assigns: Runs with Land. The covenants, terms, conditions,
and restrictions of this Easement shall be binding upon, and inure to the benefit
of, the parties to this Easement and their respective successors, and assigns,
and shall continue as a servitude running in perpetuity with the Easement
Property.
8. Termination of Rights and Obligations. A party's rights and obligations under
this Easement terminate upon transfer of the party's interest in the Easement
or Easement Property, except that liability for acts or omissions occurring prior
to transfer shall survive transfer.
9. Counterparts. The parties may execute this instrument in two or more
counterparts. Each counterpart shall be deemed an original instrument as
against any party who has signed it. In the event of any disparity between the
counterparts produced, the recorded counterpart shall be controlling.
Page 34 of 47
10. Effective Date. This Easement shall be effective as of the date on which this
Easement is recorded in the State of Hawaii Bureau of Conveyances (referred
to in this Easement as the "Effective Date").
11. No Merger. Grantee agrees to take whatever steps are necessary to ensure
that merger of the fee and Easement estates does not occur in order to ensure
the continued viability of this Easement.
END OF TEXT SIGNATURES ON NEXT PAGE
Page 35 of 47
GRANTOR:
ALA KAHAKAI TRAIL ASSOCIATION
By:
Kaleo Paik
Its Secretary, Board of Directors
NOTARY ACKNOWLEDGMENT
STATE OF HAWAII
) SS.
&17� t COUNTY OF t-Itb 0 0
State of Hawaii
C14Y 1 County of VWotvLv
On this of Vez*,tA 5f-e- _, 20 19 before me personally
appeared UNDA KALC-v ORM , to me known to be the person described in and
who executed the foregoing instrument and acknowledged that he/she/they
executed the same as their free act and deed.
NAk
19.501
tignaturAjotgry Public
Print Name: KRISTEN NAKAMURA
--EX-PiR*TjeN+iovernber 24,2023 ..........
My Commission expires: - OF \A
NOTARY CERTIFICATE, STATE OF HAWAII
(Seal) Doc. DescriptionlID: A4I2f-6#-4W1-
?Zkt9Pt&$4 &f*ALC4P—j
Doc. Date: ugcAT* 4P - Pages:
NAKq
tart' N m : ris e mura Circuit
........
Notaty Sign u e Cert. Date
OTAIj
19-501
b Ij 13 t-'C' .
6
Page 36 of 47
o F \A
GRANTEE:
COUNTY OF HAWAN
By: 4
HJ& Kim
Mayor
Approval Recommended:
By: La A --A,
Deanna Sako
Director of Department of Finance
Approved as to form and legality
By:
eRonald Kim
Deputy Corporation Counsel
Approved as to Avallablilty of Funds
In the amounts and for the purpose
set forth herein.
6--
..............
DIRECTOR OF FINANCE
DEC 0 4 2019
Page 37 of 47
STATE OF HAWAVI
M
COUNTY OF HAWAVI
On this I Oth day of December, 2019, before me personally appeared ROY TAKEMOTO,
to me personally known, who, being by me duly sworn, did say that he is the Managing Director
of the County of Hawaii, a municipal corporation of the State of Hawaii, that the foregoing
instrument was signed on behalf of the County of Hawaii 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
(2016), as amended, and assigned by the Mayor to the Managing Director pursuant to Section 6-
1.3(h) of the County Charter; and said ROY TAKEMOTO acknowledged said instrument to be
the free act and deed of said County of Hawaii.
K-S
Signature
0,
T:.140TAR 0
AMBER K.S. KEPOO
18-14-5
17B 11
Print or Type Name
0�,& %A'�"
Notary Public, State of Hawaii
My Commission Expires: 04/01/2
NOTARY CERTIFICATION
Doc. Date: Undated
No. of Pages: 47
Notary Name: AMBER K.S. KEPOO
Third Circuit
Doc. Description:
Treatment Plant
Agreement Regarding the
Naalehu Wastewater
www" -g- �
Notary Signature
LCM
EXHIBIT A
Legal Description
-ITEM I: -
All of that certain parcel of land (being all of Royal Patent Grant
Number 994, Apana 1 to Haleloa; all of Royal Patent Grant Number
3161 to to S. K. Kawaiponia and Hao; all of Royal Patent Grant
Number 2159 to Moeawa; all of Royal Patent Grant Number 1897 to
Kahula; a portion of Royal Patent Grant Number 2771 to S. Laanui; the
remainder of Royal Patent Grant Number 994, Apana 2 to Heleloa; all
of Land Commission Award Number 7553-B, Apanas 1 and 2 to Pa; all
of Royal Patent Number 4996, Land Commission Award Number
7315, Apanas 1 and 2 to Keawahano; all of Royal Patent Number
3296, Land Commission Award Number 9963, Apanas 1, 2 and 3 to
Leanui; all of Royal Patent Number 5001, Land Commission Award
Number 7542, Apana 2 to Kahaliukua; all of Royal Patent Number
6821, Land Commission Award Number 7535, Apanas 1 and 2 to
Kokai; all of Royal Patent Number 2957, Land Commission Award
Number 10445, Apana 2 to Naluahi; all of Royal Patent Number 3211,
Land Commission Award 10591, Apanas 2 and 3 to Pihe; a portion of
Royal Patent Number 6882, Land Commission Award Number 9971,
Apana 10 to W. P. Leleiohoku; Exclusion 1 and Exclusion 2 at
Kahilipali Nui and Iki, Kau, Hawaii) situate, lying and being at Kahilipali
Nui and Iki, roughly at the south end of the Naalehu Spur Road,
District of Ka'u, Island and County of Hawaii, State of Hawaii, being
PARCEL 16, as shown on survey map prepared by Wayne A. Subica,
Jr., Land Surveyor, with John D. Weeks Inc., dated November 30,
2016, updated on December 16, 2016 and February 26, 2017, and
revised on May 7, 2019, and thus bounded and described; to -wit:
Beginning at a pipe at the northeast corner of this parcel of land, the
coordinates of which referred to Government Survey Triangulation
Station "STINE 2" being 994.46 feet south and 3404.98 feet west and
running by azimuths measured clockwise from true South:
1. 3410 42' 239.88 feet along Grant 820:2 to
Laweliilii to a spike, found;
2. 3260 42' 118.91 feet along Grant 820:2 to
Laweliilii to a pipe set;
3. 332° 42' 289.63 feet along Grant 820:2 to
Laweliilii to a spike, set;
Page 39 of 47
4. 3300
42'
512.16
feet along Grant 820:2 to
LaweliiIii to a spike, set;
5. 3220
42'
162.36
feet along Grant 820:2 to
Laweliflii to a spike, set;
6. 2970
57'
203.28
feet along Grant 820:2 to
Laweliilii to a spike, set;
7. 3190
12'
843.48
feet along Grant 820:2 to
LaweliiIii, along Grant 2724:1
to Kalike to a pipe, set;
8. 3370
57'
1974.22
feet along Grant 2724:1 to
Kalike to a nail, found;
9. 3460
34'
1611.60
feet along Grant 2599 to
Kahakauwila to a pipe, set;
10. 3350
27'
1869.12
feet along Grant 2599 to
Kahakauwila to a pipe, set;
11. 3330
12'
1328.36
feet along Grant 2599 to
Kahakauwila to a pipe, set;
12. 3530
54'
1955.38
feet along Grant 2114 to
Keanu to a pipe, set;
13. 3400
47'
30" 1738.93
feet along Grant 2114 to
Keanu, along the land of
Kawala to a pipe, set;
Thence,
along
the shoreline for the next nineteen (19) courses, the
direct azimuths and distance
being:
14. 530
07'
126.11
feet to a 'Y' cut in pahoehoe,
set;
15. 610
36'
176.82
feet to a 'Y' cut in pahoehoe,
set;
16. 470
46'
287.44
feet to a rebar, set;
17. 270
03'
205.71
feet to a pipe, set;
18. 550
02'
20" 592.74
feet to a pipe, set;
Page 40 of 47
19.
580
17'
30"
269.46
feet to a pipe, set;
20.
500
35'
20"
254.92
feet to a pipe, set;
21.
450
09'
30"
435.14
feet to a 'Y' cut in pahoehoe,
set;
22.
510
01'
50"
1040.70
feet to a 'Y' cut in pahoehoe,
set;
23.
3570
32'
30"
703.29
feet to a cut in pahoehoe,
set;
24.
170
08'
20"
776.45
feet to a cut in pahoehoe,
set;
25.
210
49'
10"
1396.80
feet to a cut in pahoehoe,
set;
26.
170
17'
40"
1633.15
feet to a 'Y' cut in pahoehoe,
set;
27.
220
02'
10"
1228.39
feet to a 'Y' cut in pahoehoe,
set;
28.
390
32'
20"
1110.77
feet to a 'Y' cut in pahoehoe,
set;
29.
360
12'
50"
754.21
feet to a 'Y' cut in pahoehoe,
set;
30.
520
04'
10"
621.40
feet to a spike in concrete,
found,
31.
610
00'
297.21
feet to a 'Y' cut top of large
boulder, set;
32.
250
06'
50"
498.19
feet to a 'Y' cut in pahoehoe,
set, thence;
Along
the Government Land of Waiohinu for the following eight
(8) courses:
33.
1320 30'
282.67
feet to a 'Y' cut in pahoehoe,
set;
Page 41 of 47
34. 1770 30' 3486.01
35. 1770 45' 05" 7727.94
36. 1770 00' 2203.64
37. 1650 50' 30" 1110.91
38. 990 00' 1079.97
39. 1560 30' 10" 1449.71
40. 1640 15' 1313.07
41. 2500 00' 2586.31
E, PM DM.*] *-YA
43, 1790 48' 40" 1198.69
feet to a "A" cut on
pahoehoe, found;
feet to a nail, set;
feet to a pipe, set;
feet to a pipe, set;
feet to a pipe, set;
feet to a pipe, set;
feet to a pipe, set;
feet along stonewall, along
the remainder of Grant 2771
to S. Laanui to a pipe, set;
feet along stonewall, along
Grant 2771 to S. Laanui to a
pipe; set;
feet along stonewall, along
Grant 2771 to S. Laanui to a
"SL" cut in pahoehoe, found;
44. 1670 22' 1298.83 feet along stonewall, along
Grant 996 to Laanui to a
pipe, set, thence;
Along a portion of Parcel 1 of Tax Map Key: 9-5-22, along the
remainder of RP 6882, LCAw
9971 Apana 10 to WP
Leleiohoku on a curve to the
left with a radius of 7960.00
feet, the chord azimuths and
distance being:
45. 2690 22' 53.9" 537.56 feet to a pipe, set, thence;
Along a portion of Parcel 1 to Tax Map Key: 9-5-22, along the
remainder of RP 6882, LCAw
9971 Apana 10 to WP
Leleiohoku on a curve to the
Page 42 of 47
46. 2660 55' 17.2" 146.18
47, 2660 23' 40" 1734.28
left with a radius of 7690.00
feet, the chord azimuths and
distance being:
feet to a pipe, set;
feet along the remainder of
Parcel 1 of Tax Map Key: 9-
5-22, along a portion of
Parcel 15 of Tax Map Key: 9-
5-021, along the remainder of
RP 6882, LCAw 9771 Apana
10 to WP Leleiohoku to a
pipe, set;
48. 1760 23' 40" 5.00 feet along a portion of Parcel
15, of Tax Map Key: 9-5-21,
along the remainder of RP
6882, LCAw 9771 Apana 10
to WP Leleiohoku to a pipe,
set;
49. 2660 23' 40" 513.50
feet along a portion of Parcel
15 of Tax Map Key: 9-5-021,
along the remainder of RP
6882, LCAw 9771 Apana 10
to WP Leleiohoku to the point
of beginning and containing a
GROSS AREA of 2333.644
acres, more or less.
EXCEPTING AND EXCLUDING therefrom Exclusion 1 having an area
of 8.0 acres and Exclusion 2 having an area of 7.8 acres, leaving a
NET AREA of 2317.844 acres, more or less.
-ITEM II: -
(A) A nonexclusive easement for roadway access and utility
purposes over, across, and under, Road Easement A, Road
Easement B, Road Easement C, Road Easement E, Road
Easement F, Road Easement G (Revised) and Proposed
Naalehu Spur Road, as more particularly described and set forth
in DECLARATION OF EASEMENTS FOR ROADWAY AND
UTILITIES, dated August 5, 2004, recorded as Document No.
2004-173077; subject to the terms and provisions contained
Page 43 of 47
therein.
Said DECLARATION OF EASEMENTS FOR ROADWAY AND
UTILITIES was amended by instrument dated October 26, 2004,
recorded as Document No. 2004-228021.
(B) A nonexclusive easement for roadway access and utility
purposes, through, over, under and across Road Easement "D",
as more particularly described and granted in GRANT OF
EASEMENT FOR ROADWAY ACCESS AND UTILITIES
PURPOSES, dated August 5, 2004, recorded as Document No.
2004-173078; subject to the terms and provisions contained
therein.
A non-exclusive easement for pedestrian and vehicular ingress and
egress and utility purposes over and across TMK: (3) 9-5-022:001, as
more particularly described and granted in DECLARATION OF
ACCESS AND UTILITY EASEMENT dated June 23, 2017, recorded
as Document No. A-63970460; subject to the terms and provisions
contained therein.
-Note:- (a) The metes and bounds description shown in Item I
above is from survey dated November 30, 2016
(updated December 16, 2016 and February 26, 2017,
and revised May 7, 2019 ), by Wayne A. Subica, Jr.,
with John D. Weeks, Inc.
(b) The property described under Item I above is referred
to by Tax Map Key (3) 9-5-007-016.
Page 44 of 47
EXHIBIT B
Survey of Excluded Area
Being a Portion of R.P. 6882, L.C. Award 9971, Apana 10to Lota
Kamehameha Situated at Kahilipali Nui, Kau, 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 "STEIN 2" being 1,044.33
feet South and 4,116.75 West and running by azimuths measured clockwise from True
South:
1. 3000 27' 40" 653.00 feet;
2. 2680 16' 40" 274.70 feet;
3. 3280 17' 40" 149.96 feet;
4. 280 17' 40" 1000.00 feet;
5. 1180 17' 40" 765.00 feet;
6. 1480 17' 40" 1079.00 feet;
7. 2660 23' 40" 800.00 feet along Lot 2 (TMK:9-5-022:01) and Lot (TMK:9-5-021:015)
to the point of beginning and containing an area of 28.739
acres.
Page 45 of 47
EXHIBIT C
Funding Sources
Funding for the purchase of the Property by Grantor and this Easement granted by
Grantor to Grantee comes from the following public and private sources:
The Public Access, Open Space, and Natural Resources Preservation Commission
("PONC').
The County of Hawai'i Public Access, Open Space and Natural Resources Preservation
Commission (PONC) encourages the public to propose properties that can be acquired
for open space.
PONC commissioners represent each of the nine County Council districts on
Hawaii Island. Commissioners review the suggestion forms submitted by the public,
and consider the significant factors of each property such as historic and culturally
important features; opportunities for outdoor recreation and education; public access to
beaches or mountains; preservation of forests, beaches, coastal areas, and natural
beauty; protection of natural resources and watershed lands; potential partners for
management; and the general benefits to the public. Potential acquisitions are then
prioritized and listed in a report that is sent to the Mayor at the end of each year.
PONC funds are derived from 2% of Hawaii County's annual real property tax
revenues. The County may also seek matching funds and donations from other
sources to help acquire open space properties.
A Maintenance Fund has also been established to maintain properties that are acquired
with PONC funds.
A. The Legacy Land Conservation Program ("LLCP'). The Division of Forestry
and Wildlife, State of Hawaii Department of Land and Natural Resources, administers the
LLCP. Governed by Chapter 173A, Hawai'i Revised Statutes, and Chapter 13-140,
Hawai'i Administrative Rules, the LLCP provides grants to community organizations and
government agencies that strive to purchase and protect land that shelters exceptional,
unique, threatened, and endangered resources.
B. Private Funding Through the Trust for Public Land and Ala Kahakai Trail
Association. The Trust for Public Land, and Ala Kahakai Trail Association, both
contributed privately -raised funding for some of the costs associated with the purchase
and conservation easement. These funds came as grants or donations to The Trust for
Public Land, and Ala Kahakai Trail Association, both 501(c)(3) nonprofit corporations.
Page 46 of 47
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