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Home My WebLink AboutCOM 0397.000 2024-2026C. Kimo Alameda, Ph.D. Mayor William V. Brilhante, Jr. Managing Director Merrick Nishimoto Deputy Managing Director Kehaulani M. Costa Housing Administrator Keiko M. Mercado Assistant Housing Administrator County of Hawaii Office of Housing and Community Development 1990 Kino`ole Street, Suite 102 - Hilo, Hawaii 96720 - (808) 961-8379 - Fax (808) 961-8685 Existing Housing: (808) 959-4642 - Fax (808) 959-9308 Kona: (808) 323-4300 - Fax (808) 323-4301 TRANSMITTAL LETTER June 19, 2025 TO: Holeka Inaba, Council Chair and Members of the Hawai'i County Council FROM: Kehaulani M. Costa Housing Administrator SUBJECT: ORDINANCE 22-87 RELATED TO AFFORDABLE HOUSING AFFORDABLE HOUSING AGREEMENT COPIES/ITEMS I DATE I DESCRIPTION One (1) copy 2/21/25 I Affordable Housing Agreement for Hinchcliff Development (TMK: (3) 7-3-024:008) TRANSMITTED FOR: ® Your information and files ❑ Your approval ❑ Your signature and return ❑ Your review and comments ❑ Your signature and forwarding ❑ See remarks below as noted below ❑ Returning to you ❑ Per your request REMARKS: Pursuant to Hawai'i County Code Section 11.19(a) Affordable Housing agreements, within thirty calendar days following the date of execution of any affordable housing agreement executed in satisfaction of this chapter, the housing administrator shall submit a copy of the affordable housing agreement to the council. Enclosed is an executed Affordable Housing Agreement for Hinchcliff Development and filed with the Bureau of Conveyances on May 30, 2025. Should you have any questions please contact Kaloa RN Robinson at (808) 961-8379. Thank you. 3667pkrr Comm. No.6q+ Ref. To: ' Ref. bate JUG 2 6 ms cl- STATE OF HAWAII BUREAU OF CONVEYANCES r• " �� RECORDED May 30, 2025 9:15 AM Doc No(s) A - 9281000571 /s/ MIKE H. IMANAKA Pkg 12546815 JNM. REGISTRAR LAND COURT ` TA REGULAR SYSTEM Return By Mail X Pick -Up To: TITLE OF DOCUMENT: AFFORDABLE HOUSING AGREEMENT DEVELOPER: CLINTON HINCHCLIFF, JR., whose principal place of business and mailing address is 73-4280 Kiekie St., Kailua-Kona, Hawaii, 96740-8492 COUNTY: COUNTY OF HAWAI`I, a municipal corporation of the State of Hawaii, whose principal place of business and mailing address is 25 Aupuni Street, Hilo, Hawaii 96720 " TAX MAP KEY(S): (3) 7-3-024:008 (This document consists of pages.) _& AFFORDABLE HOUSING AGREEMENT This Agreement is made and effective this day, FEB 2 12025 by and between CLINTON HINCHCLIFF, JR., hereinafter referred to as "Developer", whose principal place of business and mailing address is: 73-4280 Kiekie St., Kailua-Kona, Hawaii, 96740-8492, and the COUNTY OF HAWAI`I, a municipal corporation of the State of Hawaii, hereinafter referred to as "County", whose principal place of business and mailing address is 25 Aupuni Street, Hilo, Hawaii 96720. " RECITALS WHEREAS, the Developer proposes to develop approximately seven (7) finished housing lots on approximately twenty-one (21.9920) acres of real property situated off of Kaloko Drive in Kailua-Kona, District of the Kaloko-Mauka Subdivision, County and State of Hawaii identified as TMK: (3) 7-3-024:008 (hereinafter the "Project"), and more particularly described in Exhibit "A" attached hereto and made part of; and WHEREAS, on August 3, 2022, the County's Change of Zone Ordinance No. 22-87 became effective, amending the zoning of the Affordable Housing Site from Agricultural — Twenty Acres (A-20a) to Family Agricultural — (FA-3a) subject to Condition "T", which provides for the development of affordable housing lots as follows_ T. To ensure that the Goals and Policies of the Housing EIement of the General Plan are implemented, the Applicant shall comply with the requirements of Chapter 11, Article 1, Hawai`i County Code relating to Affordable Housing Policy. This requirement shall be approved by the Administrator of the Office of Housing and Community Development prior to Final Subdivision Approval. WHEREAS, the Developer has evaluated the various options available .for satisfying the requirements of Chapter 11, Article 1, Hawai`i County Code ("Chapter 11"); and WHEREAS, Hawaii County Code ("HCC") Section 11-5(a)(1) provides that the affordable housing requirements can be satisfied if the Developer were to construct and sell affordable for -sale units on -site; and —Z— 3451plar __1 WHEREAS, the Developer proposes to satisfy the Project's affordable housing requirements through the construction and sale of one (1) dwelling unit affordable to qualified households earning 80-100% of the adjusted median income to earn 1.5 credits per unit in accordance with HCC Section I 1-5(c)(3); and WHEREAS, the Developer has alternatively purposed, in the event the Developer is not able to construct and sell the affordable dwelling unit, to satisfy the affordable housing requirement by constructing and selling a total of two (2) affordable finished lots in accordance with HCC Section 11-5(a)(2); and WHEREAS, the Developer shall construct an affordable unit with completed road access, drainage, water, electricity, sewer lines, as required, and telephone, and, shall not have unusual site conditions that make it difficult to build a home in accordance with HCC Section I I -5(b); and WHEREAS, Chapter I 1 of the Hawaii County Code, relating to Affordable Housing Policy, authorizes the Mayor, the Office of Housing and Community Development ("OHCD") or their duly authorized representative to enter into this Agreement with the Developer to perform one or any combination of the options for satisfaction of the affordable housing requirements contained within HCC Section 11-5; and NOW, THEREFORE, in consideration of the mutual covenants in this Agreement, and pursuant to Chapter 11, the parties hereby agree as follows: I. Developer Representations and Warranties Developer hereby represents and warrants following: 1. At the time of execution of this Agreement, Developer has good and marketable a, fee -simple title to the Property, subject only to such encumbrances set forth on Exhibit "A" hereto. 2. Developer is qualified to transact business under the laws of the State of Hawaii and has the full legal right, power and authority to execute this Agreement. �2-- 3451pkrr z 3. The execution and performance of this Agreement by the Developer will not violate or, as applicable, have not violated any provision of law, rule or regulation or any order of any court or other agency or governmental body. 4. Developer will not knowingly take or permit any action that would result in a violation of the requirements of Chapter I 1 of the Hawaii County Code and applicable regulations or this Agreement. Further, the Developer will comply with all applicable County, State, and Federal laws, rules, regulations, and requirements. 5. Developer plans on satisfying the affordable housing requirements of the Project utilizing the options set forth in this Agreement, as summarized as: Option 1: Complete construction and sale of one (1) dwelling unit affordable to qualified households earning 80-100% of adjusted median income to earn a total of one and one-half (1.5) credits; and Option 2: Complete the sale of two (2) finished lots, one Lot at the eighty percent (80%) adjusted medium income (AMI) level earning one Credit each, for a total of one (1) credit, and the sale of one (1) Lot at one hundred percent (100%) adjusted medium income level earning one half Credit (0.5) each, for a total of one and one-half (1.5) credits. Il. Option 1: Satisfaction by the Sale of 1 Affordable Housing Unit .1. Development of Property: Developer is responsible for completing the development of seven (7) finished lots with road access, drainage, water, electricity, sewer lines if r required, and telephone. Developer agrees to construct and sell an affordable dwelling unit ("Affordable Housing Unit") on one of the finished lots that meets the following criteria: a. affordable to Income Eligible Buyers earning 80-100% of adjusted median income to earn a total of 1.5 credits; -3^- 3451pkrr b. located on one of the seven (7) finished lots with no unusual site conditions and the lot will be approved by OHCD for the construction of the affordable home; and c. the sale of the Affordable Housing Unit at an Affordable Sales Price as approved by the Housing Administrator in writing prior to the sale of the Affordable Lots reserved for Option 2. 2. Eligible buyer(s): OHCD will evaluate and approve eligibility of Income Eligible Buyer(s) pursuant to Section 11-13 in writing. 3. Sale of Affordable Housing Unit: Developer shall prepare and OHCD will approve a marketing plan for the sale of the Affordable Housing Unit. Affordable Housing Unit shall be sold on a per unit basis using mortgages where the term is fixed for a minimum of at least fifteen years. The sale of the Affordable Housing Unit will include a Warranty Deed rider that will outline the affordability period and resale restrictions as required by Chapter I 1 and the Housing Administrator. 4. Timeline. The Developer agrees to construct and sell a housing unit to an eligible buyer within five (5) years from the date of execution of this Agreement. Developer can request an extension of this timeline, subject to the approval of the Housing Administrator. If an extension is granted, such extension will be memorialized in an amendment to this Agreement. III. OPTION 2: Satisfaction by the Sale of 2 Affordable Finished Lots In the event Developer is unable to complete the construction and sale -of the one (1) affordable housing unit in compliance with Chapter 11, the Developer agrees to meet the affordable housing requirement of the Project, as follows: 1. Development of the Property. Developer is responsible for completing the development of seven (7) finished lots with road access drainage, water, electricity, sewer lines, if R- required, and telephone. As required by HCC Sectionl 1-5(a)(2), the entire Project will be marketed as finished lots. Two (2) of the seven (7) finished lots will be designated to -47 3451 pkrr 4 be sold as an affordable finished lot ("Affordable Lots"), subject to the approval of the Housing Administrator. The Affordable Lots shall not have unsual site conditions that make it difficult to build a home, in accordance with HCC Section 1-5(b). Until such time as the conditions set forth in this Agreement are satisfied, the provisions of this Agreement and the requirements to provide the Affordable Lots shall be binding on the Property. 2. Designated Affordable Lots. Developer hereby agrees to construct the following Affordable Lots within the Project site, and to sell those lots exclusively to the indicated Income Eligible Buyer(s) at an Affordable Sale Price: Number of Lots Income Eligible Buyers Credits Earned per Unit 1 No more than 80% AMI 1.0 1 No more than 100 % AMI 0.5 The calculations above are pursuant to HCC Section 1-5(d)(2). A. The designated Affordable Lots shall be acceptable to and approved by the Housing Administrator in writing prior to the sale of market finished lots. B. The designated Affordable Lots shall be of comparable area (square feet) as the market lots, and be completed with road access drainage, water, electricity, sewer lines, if required, and telephone, and shall not have unsual site conditions that make it difficult to build a home. C. If the designated Affordable Lots on the Project site are intended to be developed and marketed in more than one development phase, -then at least twenty percent (20%) of the lots offered in each phase shall be designated as Affordable Lots. D. Developer may subsequently change the Affordable Lot designation within a Phase if acceptable to and approved by the Housing Administrator and meets all of the requirements outlined in Section B. Changes to the Affordable Housing -5- 3451pk r Lot designation shall not be unreasonably withheld. Any subsequent change to the Affordable Lot designation will be approved in writing. 3. Sale of Affordable Lots. Developer shall comply with the procedures and guidelines outlined by OHCD in relation to the sale of the Affordable Lots. All sales of the Affordable Lots will include a Warranty Deed rider that will outline the affordability period and resale restrictions as required by Chapter 1 l and the Housing Administrator. 4. Timeline. If Developer is not able to construct and sell the Affordable Housing Unit as outline in Option 1, the Developer shall complete the construction of the Project and sell the Affordable Lots to Income Eligible Buyers within five (5) years from the date of execution of this Agreement. Developer can request an extension of this timeline, subject to the approval of the Housing Administrator. If an extension is granted,. such extension will be memorialized in an amendment to this Agreement. IV. General Terms That Apply to This Agreement l . Completion of Performance: Release. Completion of performance of the affordable housing requirements requires the construction and sale of the Affordable Housing Unit or the Affordable Lots. Upon satisfaction, a Release of the Agreement of this Agreement shall be executed by the parties hereto and filed by the Developer with the Bureau of Conveyances, or with the Land Court of the State of Hawaii, as applicable, within thirty (30) days of execution. 2. Changes in Development Plans. Any change in the development plans may change the number of affordable housing credits required to fully satisfy the affordable housing requirements of the Project located at TMK: (3) 7-3-024:008. If the development plans for the Project located at TMK: (3) 7-3-024:008 change, Developer will renegotiate the terms of satisfying the affordable housing requirements and agree to the amendment of this Agreement as necessary to comply with the Code, any and all applicable rules, regulations, policies, procedures, rulings or other official statements pertaining to the - �6f- 3451pkrr I implementation of HCC Chapter 11. 3. Amendment. The Developer agrees that it will take all actions necessary to effect amendment of this Agreement as may be necessary to comply with the Code, any and all applicable rules, regulations, policies, procedures, rulings or other officials statements f pertaining to the implementation of Chapter 11, the Affordable Housing Policy, as may t i be amended. 4. Termination. Immediately upon termination, lapse, disapproval or revocation (as applicable) of Developer's final subdivision approval, or plan approval, this Agreement shall, without further action on the part of any party hereto, terminate and be of no further force or effect. 5. Breach: Enforcement of Restrictions. Developer acknowledges that the purpose of this agreement is to ensure compliance with the Project and Developer with Chapter 11, f Affordable Housing Policy, and the applicable rules and regulations. BY REASON THEREOF, THE OWNER HEREBY AGREES, THAT ANY BREACH OF THE AFFORDABILITY PROVISIONS TO CONSTRUCT AND SELL ONE AFFORDABLE UNIT TO AN ELIGIBLE BUYER EARNING NO MORE THAN 100% OF THE ADJUSTED MEDIAN INCOME, THE COUNTY AND ANY INDIVIDUAL WHO MEETS THE REQUIREMENTS OF AN INCOME ELIGIBLE BUYER SHALL BE ENTITLED, IN ADDITION TO ALL OTHER REMEDIES PROVIDED BY LAW OR IN EQUITY, TO ENFORCE SPECIFIC PERFORMANCE BY THE DEVELOPER UNDER THIS AGREEMENT IN A COURT OF COMPETENT JURISDICTION. The Developer hereby further specifically acknowledges that the beneficiaries of the Developer's obligations hereunder cannot be adequately compensated by monetary damages in the event of any default hereunder. In the event the Affordable Home are not sold at the Affordable Sale Price as indicated in this agreement, the County shall have the right to: -7- 3451pkrr a. require the Developer to remit to the County all proceeds above the delineated Affordable Sale Price for the designated Affordable Housing Unit or Affordable Lot(s), as may be applicable, such proceeds will go to the Affordable Housing Production Fund; or b. enforce specific performance of the sale of an unsold market finished lot at the Affordable Sale Price to an Income Eligible Buyer following the procedures and restrictions outlined by OHCD; or C. purchase from the Developer any unsold market finished lot, equivalent to the designated Affordable Lot(s) that was not sold at the Affordable Sale, for a purchase price of ONE AND NO/100 DOLLARS ($1.00). 6. Recordation. This Agreement shall run with the land and be binding upon and inure to the benefit of the parties hereto, and their respective successors and assigns. This Agreement shall be recorded against the land by the Developer at the BOC or with the Land Court of the State of Hawaii as applicable, within thirty (30) days after being fully executed by the parties. The parties agree to take such actions and execute whatever other documents as are necessary to effectuate and carry out the intent of this Agreement. 7. Agreement Binding Upon Successors. This Agreement shall run with the land and be binding upon and inure to the benefits parties hereto, their respective successors and assigns. Any subsequent owner of all or any portion of the Project shall, without any further action being required, assume all obligations of the Developer hereunder. 8. Prior Agreements. This Agreement supersedes all other agreement and understandings (whether oral or written) made heretofore or contemporaneously herewith by the parties on the subject matter hereof. The provisions of this Agreement may not be modified, altered, or changed except by another written instrument executed by the parties hereto. 9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and integrates all of the terms and conditions mentioned herein or incidental hereto and .. supersedes all negotiations or previous agreements between the parties regarding all or -8- 3451pkrr any part of the subject matter thereof. Each party to this agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of the party, which are not embodied herein, and that any other agreement, statement, or promises not contained in this Agreement shall not be valid or binding. This Agreement may only be amended by written instrument signed by both the County and Owner. 10. Records Availability and Retention. Developer shall submit any information, documents, or certifications requested by OHCD as deemed reasonably necessary to substantiate the Developer's continuing compliance with the provisions this Agreement. Developer will retain all records pertaining to the compliance of this Agreement for ten (10) years after full release from this Agreement. l l . Severability. If any term, provision, or covenant of this Agreement is held by a court of competent jurisdictions to be invalid, void or otherwise unenforceable, the remaining terms, provisions, and covenants of this Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated. 12. Fair Housing. Notwithstanding anything else herein, the Developer agrees to comply fully with the requirements of the Fair Housing Act as it may from time to time be amended. 13. Governing Law. The Agreement shall be governed and construed in. accordance with the laws of the State and County of Hawaii. No action or proceeding involving this Agreement shall be commenced by either party except in the Circuit or District Courts of the Third Circuit, County of Hawaii, State of Hawaii; nor shall any -action commenced in sueh-court.be removed or transferred to any other state or federal court. 14. Notices and Demands. All notices to be given pursuant to this Agreement shall be in writing and shall be deemed given when mailed by certified or registered mail, return receipt requested, to the -g- 345lpkrr parties hereto at the addresses set forth below, or to such other place as a party may from time to time designate in writing. To the County: Housing Administrator Office of Housing and Community Development 1990 Kino`ole Street, Suite 102 Hilo, Hawaii 96720 To the Developer: Clinton Hinchcliff, Jr. 73-4280 Kiekie St. Kailua-Kona, Hawaii 96740-8492 The OHCD and the Developer may, by notice given hereunder, designate any further or different address to which subsequent notices, certificates or other communications shall be sent. 15. Ethical Considerations. It is mutually agreed that as a condition of this Agreement, neither the Developer nor any subcontract consultant shall employ in his performance any person, either on a part-time or on a full-time basis, for the performance of any of the work required or contemplated by this Agreement who is an employee of the County of Hawaii during the period of this Agreement without an advisory opinion from the County of Hawaii Board of Ethics confirming there is no conflict of interest with such employment. 16. No Party the Drafter. The parties agree that no party shall be deemed to be the drafter of this Agreement, and further that in the event this Agreement is ever construed by a court of law, such court shall not construe this Agreement or any provisions of this Agreement against any party as the drafter of this Agreement. 17. Title of Articles and Sections. In this Agreement, the headings are inserted for - convenience, reference, and identification purposes only, and shall neither control, define, limit, alter, nor affect the matters contained in this Agreement or the paragraphs —10- 3451pkrr L which they head. 18. Counterparts. This instrument may be executed in two or more counterparts, and when all counterparts have been executed, each counterpart shall be considered an original but when assembled shall constitute one and the same instrument and shall have the same force and effect as though all of the signatories had executed a single signature page. Any unexecuted duplicate pages may be omitted from the assembled original document. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.] // // -11- 3451pka - IN WITNESS WHEREOF, the parties have executed these presents on the date and year first above written. RECOMMEND APPROVAL: Kehaulani M. Costa Housing Administrator Office of Housing and Community Development Dated: Z j►3 �%� APPROVED AS TO FORM AND LEGALITY: Sylvia,X.Wayin Deputy Corporation Counsel Office of the Corporation Counsel County of Hawaii Dated: 0- l a 0 "COUNTY": COUNTY OF HAWAI`I By: WILL L.ERILHAN�TE, Print Name: Its: Managing Director Dated: FEB 21 2025 "DEVELOPER": Clinton Hinchcliff, Jr. Developer By: PrintName: � Its: Dated: I /-/ 2 r 3451pkrr-. T 1 L STATE OF HAWAI`I ) ) SS. COUNTY OF HAWAI`I ) On this 21 ' day of February, 2025, before me personally appeared WILLIAM V. BRILHANTE, JR., to me personally known, who, being by me duly sworn, did say that WILLIAM V. BRILHANTE, JR., 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 Section 5-1.3 and Section 13-13 of the County Charter, County of Hawaii (2024), as amended, and assigned by the Mayor to the Managing Director pursuant to Section 6-1.3(h) of the County Charter; and said WILLIAM V. BRILHANTE, JR., acknowledged said instrument to be the free act and deed of said County of Hawaii. Doc. Date: Notary Name: ••,'•,''Ne M M. .a�S 41j :.0?ARC;.: Q' * 04-395 ;BttG'c ---'rFOF N�•�'•�. 02-21-25 Signature Emarie M.M. Carvalho ` Print or Type Name Notary Public, State of Hawaii My Commission Expires: 6-14-25 NOTARY CERTIFICATION Emarie M.M. Carvalho Affordable Housing Doc. Description: Agreement [re: TMK 7-3-024-008] 02-21-25 Notary Signature Date No. of Pages: 16 Third Circuit •,'' M.M. a "'• oTARr ° * 04-395 PUBOC':'\ STATE OF HAWAPI ) ss. COUNTY OF HAWAI`I ) On this day of ggntAN , 2025, before me personally appeared Cj j 6h 41VOC! i f -Tr. - , to me personally known, who, being by me duly sworn or affirmed, did say that such person(s) executed the foregoing instrument as the free act and deed of such person(s), and if applicable in the capacity shown, having been duly authorized to execute such instrument in such capacity. ; ' -'-'' •.coo* *..�.NOTARY * PUBLIC * * : * ; Name: CA ll'i20 " � COMMISSION OF HP�P"** Notary Public, State of Hawai `i My commission expires: 0-112sl25 NOTARY CERTIFICATION Doc. Date: I2-ro No. of Pages: i5 Notary Name: MiGW Wft Doc. Description: AFFORDABLE HOUSING AGREEMENT TAX MAP KEY NO.: (3) 7-17024:008 Notary Signature * �#,******I CAA�2 'O * = NOTARY * PUBLIC COMMISSION * No.13-256: N� * q P * *** OFHP**** Circuit: Third Date: Commission Expires: 3451pkrr I FILE PLAN DESCRIPTION LOT 2, BLOCK 2, KALOKO MAUKA, INCREMENT I (FII.E PLAN 994) LAND SITUATED ON THE EASTERLY SIDE OF KALOKO DRIVE AND THE NORTHERLY SIDE OF HAO STREET AT KALOKO MAUKA, NORTH KONA ISLAND OF HAWAII, HAWAII BEING A PORTION OF L. C. AWARD 7715, APANA 11 TO IOTA Big at the Southerly comer of this parcel of land on the Northerly side of Hao Street, the coordinates of said point of be&ning referred to Government Survey Triangu}ltion, Station "MOANiULUEBA: being 14,352.36 tact South and 3,884.04 feet West, thence running by azinnvths mI eloekwise from True South: 1. 1350 10' 00" 606-50 feet Wong the Northerly side of Hao Street to a point; 2. 1640 45' 00" 49.17 feet 3. 1940 20' 00" 1159.51 feet 4. 3150 10' 00" 1243.73 feet 5: 450 I i 10' 00" 1020.00 feet /I Kadua-Kona, Hawaii 1120.05 C. \fft Thence along a curve to the rigirt having a radius of 50.00 fleet, the chard aziraulb and distance being: to a point; along the Easterly side of Kaloko Drive to a point; along Lot 3C and Lot 3D (formerly Lot 3 of Block 2, File Plan 994) and Lot 4 of Block 2, File Plan 994 to a Point; along Lot 1 E-1 and Lot 1-A-1(fbn=1y Lot 1 of Block 2, File Plan 994) to the point of beginning and containing an arcs of 21.992 acres. DON MCINTOSH SURVEYING, INC Donald C. McIntosh, L. P. L. S. AM Consultant Planner, Developments DON MCWrOSH SURVEYING, INC. P. O. Box 5$ EXIT A Kaiinra Dana, Hawaii 96745-Mg TMK: (3) 7-3-24:08 JOB NO: 3667-05