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HomeMy WebLinkAboutCOM 0895.000 1998-2000 Virginia Goldstein ay Director Stephen K. Yamashiro r ~'~di°'• Mayo. Russell Kokubun ' Deputy Director U aunfl1 la ~,Pttfunii PLANNING DEPARTMENT 25 Aupuni Street, Room 109 + Hilo, Hawaii 96720-4252 (808) 961-8288 • Fax (808) 961-8742 August 17, 2000 Ms. Anne L. Mapes Belt Collins Hawaii Ltd. 680 Ala Moana Boulevard, I" Floor Honolulu, HI 96813-5406 Dear Ms. Mapes: Non-significant Zoning Change Application (NZC 00-04) Tokyu Corporation and Sea Cliff Development LLC TMK: 6-8-22:10; 6-8-33:3-11, 34-48, 52 and Portions of 1, 2, 12,13, 20, 21,32, 33, 49, 50, 53 This is to acknowledge receipt on August 8, 2000, of your request filed on behalf of Tokyu Corporation and Sea Cliff Development LLC for a determination of a non- significant zoning change in accordance with Section 25-2-45 of Chapter 25, Hawaii County Code, and Planning Department Rule 8. Your request is to adjust the boundaries of two areas without increasing the zoning densities for those areas. Specifically, the following are the zoning districts and land areas involved: 1. Multiple Family Residential - 4,000 square feet (RM-4) to Resort-Hotel 1,250 square feet (V-1.25): 32.519 acres 2. V-1.25 to RM-4: 32.519 acres Although the zoning boundaries will be transferred from one area to another, the original amount of land area for each zoning district remains the same. The relocation of the affected zoning districts from one area to another will not result in any increase in zoning densities. S Comm. No. NC)TE: Attacbment is on File in the clerk's office File No. ZNCi/ INV Ref. To: Ref. Date A116 2 1 201]0 Ms. Anne L. Mapes Belt Collins Hawaii Ltd. Page 2 August 17, 2000 Upon review of the request, we have determined that it complies with the criteria set forth in Section 25-245 (a)(1) of Chapter 25, Hawaii County Code, for determining non- significant zoning changes. The transfer of zoning districts from one area to another will not result in an increase to the current zoning districts. We, therefore, administratively grant the requested non-significant zoning changes. Should you have any questions, please feel free to contact Norman Hayashi of this office at 961-8288. Sincerely, L ST Planning Dire NH:pak P:wpwin6fto mUokyu-x cliffmc 00-18-17-00 cc: ,Hawaii County Council (w/ attachments) Real Property Tax Division (w/ attachments) West Hawaii Planning Office (w/ attachments) Roy Uchida (w\ attachments and disk) Ms. Sachiko Murano Sea Cliff Development LLC ? 1110 Not c BELT COLLINS noo HUG 8 flf'1 9 58 August 7, 2000 PLANNING i7EPARTMENT 9849.05 / OOP-226 COUNTY OF HAWAII Ms. Virginia Goldstein, Director Planning Department County of Hawaii 25 Aupuni Street Hilo, HI 96720 Dear Ms. Goldstein: Non-Significant Zoning Change Application Tokyu Corporation and Sea Cliff Development LLC TMK: 6-8-22: 10; 6-8-33: 3-11, 34-48, 52 and Portions of 1. 2. 12, 13. 20. 21, 32. 33, 49. 50, 53 Thank you for meeting with me recently regarding the non-significant zoning change application for the above property. I appreciate the clarification you provided on the comments in your June 16, 2000 letter. As discussed, based on our analysis, the additional zoning adjustments you requested we consider do not seem necessary, nor would they be possible without changes to various existing restrictions. Hence, I am resubmitting herewith the original and five copies of the application with attachments. Your comments suggest that split zones within affected residential lots could be eliminated through additional zone changes. While we agree that split zones could be eliminated, this is not the major intent of our non-significant zoning change request. First, a subdivision for the residential project was approved by the County under the current zoning. The subdivided lots resulted in some lots being split-zoned, and these lots have been sold as such. In essence, split zoning already exists. Second, the 49 Black Sand Beach at Mauna Lani Declaration of Covenants, Conditions, Restrictions and Easements (Attachment 1 to our application), more specifically Article XVII, Rezoning of the Property, allows the applicants to seek rezoning of the resort (V-1.25) zoned land only. The additional zone changes you ask that we consider would include non-resort zoned land as well, and this would be contrary to Article XVII. Third, to eliminate split zoning of some lots, you suggest that we seek RM-3 zoning rather than RM-4. To do so would result in an increase in density, which is not consistent with the criteria for non-significant zoning change. BELT COLLINS HAWAII LTD. • 680 ALA MOANA BOULEVARD, FIRST FLOOR. HONOLULU, HAWAII 96813-5406 U.S.A. TEL. 808 511-5361 FAX: 808 538-7819 EMAIL hawait®hel¢olEns.mm WEB: www.belmolLns.com PLANNING . ENGINEERING . LANDSCAPE .ARLHITECTURE • ENVIRONMENTAL CONSULTING HAWAII • SINGAPORF . HONG KONG • ALSTRALIA • THAILAND. MALAYSIA . PHILIPPINES • GUAM . SEATTLE. • SCOTTSDALE 13d1 C.ILna I1-- 1 Ey..l JPPOnuauv Pmvlover aTraC+l: C,0~. 9g5 Ms. Virginia Goldstein August 7, 2000 - 9849.05 / OOP-226 Page 2 For the reasons stated above, we would like to maintain our original rezoning request for the lots discussed under the "Map 1 " heading of your letter. During our meeting, we discussed your written comment on "Map 2," Parcel 3. You suggested that we consider requesting a zone change for a narrow sliver of land which will be retained in RM-4 while the remainder of the parcel is proposed for V-1.25 zoning. We recognize the awkwardness of this situation; however, as explained during our meeting, because of lot ownership issues, including this sliver of land would unnecessarily complicate the current request. As agreed, we will seek an adjustment for this remnant portion at a later date. We are notifying you through this letter that we are resending notices of this application to the adjoining landowners simultaneously with this filing. The notification list and copies of the notices are attached. Should you have any further comments or concerns, or require additional information, please contact me at 521-5361 or Ms. Sachiko Murano of Mauna Lani Service, Inc. at 885-6677. Thank you for considering our request. Sincerely, BELT COLLINS HAWAII LTD. a a. Anne L. Mapes ALM:lf cc: Sachiko Murano Attachments NONSIGNIFICANT ZONING CHANGE APPLICATION COUNTY OF HAWAII PLANNING DEPARTMENT APPLICANT: To4u Corporation and Sea Cliff Development LLC APPLICANT'S SIGNATURE: See attached sheet. DATE: JUN - 7 1000 APPLICANT'S ADDRESS: See attached sheet. APPLICANT'S PHONE: (Bus.) 808-885-6677 (Res.) (Fax) 808-885-8075 APPLICANT'S AGENT: Belt Collins Hawaii Ltd. AGENT'S ADDRESS: 680 Ala Moana Blvd., First Floor Honolulu, HI 96813 AGENT'S PHONE: (Bus.) 808-521-5361 (Res.) (Fax) 808-538-7819 LANDOWNER: See attached sheet. LANDOWNER'S SIGNATURE: See attached sheet. LANDOWNER'S ADDRESS: See attached sheet. TAX MAP KEY: 6-8-22:10: 6-8-33:3 to 11, 34 to 48. 52, and portions of 1, 2, 12. 13. 20, 21, 32, 33, 49, 50, and 53 REQUEST: V-1.25 and RM-4 TO V-1.25 and RM-4 (Existing Zoning) (Proposed Zoning) SIZE OF AFFECTED AREA(S): 65.038 acres See additional Instructions on Next Sheet) INSTRUCTIONS FOR FILING A NONSIGNIFICANT ZONING CHANGE APPLICATION Nonsignificant Zoning Change: A zoning change which is in compliance with the designations for the property set forth in the General Plan and any development plan adopted by ordinance and a) does not result in a net increase in the density allowed in the zoning district(s) containing the affected area; or b) be the lesser of a five percent or one acre increase or decrease in the area of any zoning district(s). 1. Submit original and five (5) copies of: a. Completed Nonsignificant Zoning Change Application. Submitted with Transmittal Letter. b. Description of the property in sufficient detail, including a location map and Tax Map Key identification, to determine its precise location. Refer to Attachment 2 C. Written statement as to the purpose of the request and why this request qualifies as a nonsignificant zoning change. Refer to Attachment 2 d. Legal description of the property in map and written form by metes and bounds as certified by a surveyor. (NOTE: A copy of the AutoCAD disk shall be submitted, if available.) Refer to Attachment 3 e. Calculation showing amount of land area to be changed in terms of percentage of the parcel. (NOTE: The area requested for a nonsignificant zoning change shall be the lesser of a five percent or one acre increase or decrease in the area of any zoning district.) Refer to Attachment 2 2. Simultaneously notify surrounding property owners within three hundred feet of the perimeter boundary of the property that a request for a nonsignificant zoning change has been filed with the Planning Director. A copy of such notice and a list of the names and addresses of the surrounding property owners shall be submitted within one week from the date of filing of the nonsignificant zoning change. Refer to Attachment 4 3. A certificate of clearance from the County of Hawaii Director of Finance that the real property taxes and all other fees relating to the subject parcel or parcels have been paid, and that there are no outstanding delinquencies. Refer to Attachment 5 APPLICANT AND LANDOWNER DATA Nonsignificant Zoning Change Request at Mauna Lani Resort TMK 6-8-22:10 APPLICANT/LANDOWNER: Tokyo Corporation 1; APPLICANT/LANDOWNER'S SIGNATURE: C -e5LC L ~l APPLICANT/LANDOWNER'S ADDRESS: c/o Mauna Lani Service. Inc. 68-1310 Mauna Lani Drive. #101 Kamuela. HI 96743-9704 TMK 6-8-33: 1 to 13; 20, 21; 32 to 50; 52 and 53* APPLICANT/LANDOWNER: Sea Cliff Development LL C APPLICANT/LANDOWNER'S SIGNATURE: 'I APPLICANT/LANDOWNER'S ADDRESS: 810 Richard Street Suite 900 Honolulu. HI 96813 *These lots are either owned or were once owned by Sea Cliff Development LLC. For those lots which have been sold to others, Sea Cliff Development has retained a right to authorize this rezoning request. See Attachment 1 of this application which includes the agreement between Sea Cliff Development LLC, and those current lot owners. SUMMARY OF AFFECTED AREAS Nonsignificant Zoning Change Request at Mauna Lani Resort TMK DESCRIPTION AFFECTED AREA (3) 6-8-2:portion of 10 Site M-1 (RM-4 TO V-1.25) 32.519 acres (3) 6-8-33:3 to 11, 34 to 48, 52, 49 Black Sand Beach Project 32.519 acres and portions of 1, 2, 12, 13, 20, 21, 32, 33, 49, 50, and 53 TOTAL 65.038 acres Attachment 1 AUTHORIZATION AGREEMENT Nonsignificant Zoning Change Request at Mauna Lani Resort The applicant, Sea Cliff Development LLC, is authorized to submit this application for lots within the 49 Black Sand Beach project based upon Article XVIII, Rezoning of the Property, of the 49 Black Sand Beach at Mauna Lani, Declaration of Covenants, Conditions, Restrictions & Easements. A full copy of that document is included as part of this Attachment. Article XVIII begins on page 49 of this document. .:]4`.7 .5 FCiLGwG LAND COURT SYSTEM REGULAR SYSTEM Aker Recordation, Return by Mail Pickup ( ) CASE BIGELOW & LOMBARDI (SDR) 737 Bishop St., Suite 2600 Honolulu, Hawaii 96813 Total Pages 69 Tax Map Key No.: (3) 6-8-22:38 49 BLACK SAND BEACH AT MAUNA LANI DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS TABLE OF CONTENTS PaRt. Article I Definitions 1 Section 1.1 Incorporation of Definitions 1 Section 1.2 Access and Utility Easement Area(s) 2 Section 1.3 Archaeological Feature(s) 2 Section 1.4 Articles of Incorporation or Articles 2 Section 1.5 Assessment Lien 2 Section 1.6 Assessments 2 Section 1.7 Association 2 Section 1.8 Association Land 2 Section 1.9 Association Rules 3 Section 1.10 Beach Club 3 Section 1.11 Benefitted Expenses 3. Section 1.12 Board of Directors or Board 3" Section 1.13 Building 3- Section 1.14 Bureau 3 Section 1.15 Bylaws 3 Section 1.16 Coastal Trail 3 Section 1.17 Common Areas 3 Section 1.18 Common Expenses 3 Section 1.19 Community Design Committee or CDC 4 Section 1.20 Community-Wide Standard 5 Section 1.21 County 5 Section 1.22 Developer 5 Section 1.23 Declaration 5 Section 1.24 Design Documents 5 Section 1.25 Design Guidelines 5 Section 1.26 Dwelling Unit 5 Section 1.27 Excavation 5 Section 1.28 File Plan 5 Section 1.29 Final Transition Date 5 Section 4.30-_G t Mortgage 5 Section 1.31 First Mortgagee 6 Section 1.32 Improvement 6 Section 1.33 Lot 6 Section 1.34 Majority 6 Section 1.35 Master Association 6 Section 1.36 Master Declaration 6 Section 1.37 Master Design Guidelines 6 Section 1.38 Mauna Lani Resort 6 Section 1.39 Member 6 26015\3\158478.5 i Section 1.40 Membership 6 Section 1.41 Mortgage 6 Section 1.42 Mortgagee 7 Section 1.43 Mortgagor 7 Section 1.44 Occupant 7 Section 1.45 Owner or Lot Owner 7 Section 1.46 Person 7 Section 1.47 Plot Plan(s) 7 Section 1.48 President 7 Section 1.49 Private Roads 7 Section 1.50 Project 7 Section 1.51 Property 7 Section 1.52 Public Access Plan 7 Section 1.53 Record, Recorded, Recording, Recordation 8 Section 1.54 Recreational Facilities 8 Section 1.55 Single-Family 8 Section 1.56 Special Use Fees 8 Section 1.57 Subdivision Map 8 Article II Statement of Purpose and Imposition of Covenants 8 Article III Property Rights 9 Section 3.1. Owners' Right of Enjoyment 9 Section 3.2. Delegation of Use 10 Section 3.3 Waiver of Use 10 Section 3.4 Indemnification for Use of Association Land 10 Section 3.5 The Francis H. Ii Brown Golf Courses 10 Article IV Master Declaration and Master Association 10 Section 4.1 Master Declaration 10 Section 4.2 Membership in Master Association 11 Section 4.3 Voting Rights 11 Section 4.4 Compliance 11 Article V - Owners Association 11 Section 5.1 Purpose of Association 11 Section 5.2 Articles and Bylaws 1 1 Section 5.3 Board of Directors and Officers 12 Section 5.4 Duties and Obligations of the Association 12 Section 5.5 Powers and Authority of the Association 13 Section 5.6 Association Rules 14 26015\3\158478.5 i1 Section 5.7 Indemnification 15 Section 5.8 Non-Liability of Officials 15 Section 5.9 Duty to Accept Association Land and Common Areas 15 Section 5.10 Litigation 16 Article VI Membership and Voting 16 Section 6.1 Membership in Association 16 Section 6.2 Membership Classes 17 Section 6.3 Transfer of Membership 17 Section 6.4 Membership Rights and Duties 17 Section 6.5 Voting 18 Section 6.6 Proxies 18 Section 6.7 Pledge of Voting Rights as Security 18 Section 6.8 Developer's Control of Association 18 Article VII Assessments 19- Section 7.1 Creation of Lien and Personal Obligation 19= Section 7.2 Purpose of Assessments 19 Section 7.3 General Assessments 19 Section 7.4 Special Assessments 20 Section 7.5 Benefitted Assessments 20 Section 7.6 Capital Improvement Assessments 21 Section 7.7 Master Association Assessments 21 Section 7.8 Rate of Assessment 21 Section 7.9 Date of Commencement of Assessments 21 Section 7.10 Developer's Assessment Obligations 21 Section 7.11 Time and Manner of Payment; Late Charges and Interest 22 Section 7.12 No Offsets 22 Section 7.13 Reserves 22 Section 7.14 Certificate of Payment 22 Section 7.15 Rules Regarding Billing and Collection Procedures 23 Section 7.16 Enforcement of Lien 23 Section 7.17 Pledge of Assessment Rights as Security 23 Article VIII = Maintenance 23 Section 8.1 Common Areas 23 Section 8.2 Owner's Responsibility 25 Section 8.3 Standard of Performance 25 Section 8.4 Assessment of Certain Costs of Maintenance and Repair of the Common Areas 25 Section 8.5 Improper Maintenance and Use of Lots 25 Section 8.6 Maintenance of Unimproved Lots 26 Section 8.7 Rights of Common Area Access and Maintenance 26 26015\31158478.5 i i i Section 8.8 Dedication of Common Areas 26 Article IX Security 26 Section 9.1 General Security 26 Section 9.2 Security for Individual Lots 27 Section 9.3 Right of Entry 27 Article X Insurance 27 Section 10.1 Authority to Purchase 27 Section 10.2 Non-Liability of Association, Board and Officers 28 Section 10.3 Premiums 28 Section 10.4 Insurance Claims 28 Section 10.5 Benefit 28 Section 10.6 Provisions Common to Association Insurance 28 Section 10.7 Annual Insurance Review 29, Section 10.8 Individual Insurance 29' Article XI Damage and Destruction of Common Areas 30 Section 11.1 Duty of Association to Restore and Repair 30 Section 11.2 Decision Not to Restore or Repair 30 Section 11.3 Excess Insurance Proceeds 30 Section 11.4 Use of Reconstruction Assessments 30 Section 11.5 Insurance Proceeds Trust 30 Article XII Eminent Domain 31 Section 12.1 Definition of Taking 31 Section 12.2 Representation in Condemnation Proceedings 31 Section 12.3 Award for Association Land 31 Article XIII Rights of Mortgagees 31 Section }3.Y,€teneral Provisions 31 Section 13.2 Subordination of Lien 31 Section 13.3 No Personal Liability 32 Section 13.4 Enforcement After Foreclosure Sale 32 Section 13.5 Exercise of Owner's Rights 32 Section 13.6 Subject to Declaration 32 Section 13.7 Notices of Action 33 Section 13.8 Other Provisions for First Mortgagees 33 Section 13.9 Applicability of Article XIII 33 Section 13.10 Failure of Mortgagee to Respond 33 26015U\158478.5 iv Article XIV Architectural and Landscape Control; Design Guidelines 33 Section 14.1 Architectural Control 33 Section 14.2 Design Guidelines 34 Section 143 Individual Lot Plot Plans 34 Section 14.4 Building Envelope and Setbacks . 34 Section 14.5 Grading and Lot Drainage 35 Section 14.6 Building Coverage 35 Section 14.7 Architectural Character 36 Section 14.8 Guest Houses 36 Section 14.9 Existing Pad and Finished Floor Elevations 36 Section 14.10 Building Height 36 Section 14.11 Minimum Dwelling Size 36 Section 14.12 Garage, Guest Parking 37 Section 14.13 Roof Materials, Color, Pitch and Eaves 37 Section 14.14 Exterior Materials and Color 37 Section 14.15 Driveways 38. Section 14.16 Fences, Walls, Hedges and Enclosures 38- Section 14.17 Utility Service 38 Section 14.18 Gas 39 Section 14.19 Pools 39 Section 14.20 Artificial Vegetation, Exterior Sculpture, and Similar Items 39 Section 14.21 Energy Conservation Equipment 39 Section 14.22 Excavation 39 Section 14.23 Continuity of Construction 39 Section 14.24 Supplementary Standards and Guidelines 39 Section 14.25 Fee Assessment 40 Section 14.26 Authority 40 Section 14.27 Non-liability for Approval of Drawings and Specifications 40 Section 14.28 Inspection and Recording of Approval 40 Section 14.29 No Waiver of Future Approvals 41 Section 14.30 Right of Removal 41 Section 14.31 Development by Developer 41 Article XV Use Restrictions 41 Section 15.1 Hazardous Materials 41 Section 15.2 Property Restrictions 42 Section 15.3 Rezoning 42 Section 15.4 General Covenants, Conditions, Restrictions and Easements 42 Section 15.5 Restriction on Further Subdivision and Consolidation 45 Section 15.6 Coastal Trail; Archaeological Features 45 Section 15.7 Zoning Classifications 45 99-0716 26015\3\158478.5 v Page v Article XVI Easements 46 Section 16.1 Recorded Easements 46 .Section 16.2 Utility Easements 46 Section 16.3 Maintenance Easement 47 Section 16.4 Drainage Easement 47 Section 16.5 Additional Easements and Licenses 47 Section 16.6 Easements for Encroachments 47 Section 16.7 Public Easements 48 Section 16.8 Easement Over Private Roads 48 Section 16.9 Access and Utility Easement Areas 48 Section 16.10 Easement in Favor of Tokyu 48 Article XVII Recreational Facilities 49 Section 17.1 Recreational Facilities 49 Section 17.2 Costs of Maintenance and Upkeep 49 Section 17.3 Rights Reserved to Developer 49 Section 17.4 Rights of the Association 49; Article XVIII Rezoning of the Property 49 Article XIX Sewer System 50 Article XX Rights and Reservations 50 Section 20.1 Reserved Rights 50 Section 20.2 Developer's Rights to Use Common Areas in Development, Promotion and Marketing of the Property 50 Section 20.3 Developer's Rights to Complete Development 51 Section 20.4 Developer's Rights to Change Subdivision Map, File Plan . 51 Section 20.5 Developer's Rights Incident to Construction 51 Section 20.6 Construction at or Adjacent to Project and Access 52 Section 20.7 Transfer of Developer's Rights 52 Section 20.8=aital Trail; Archaeological Features 52 Section 20.9 N/ithdrawal of Property 52 Section 20.10 Reserved Right in Favor of Tokyu 52 Section 20.11 Developer's Rights Related to the Realignment of the Access Road 53 Article XXI Developer's Disclaimer of Representations 53 99-0716 26015\3\158478.5 vi Page vi Article XXII Limitation on Liability 53 Section 22.1 Developer 53 Section 22.2 Mauna Lani Entities 54 Article XXIII Resort-Related Activities; Shoreline Hazards 54 Section 23.1 Resort-Related Activities 54 Section 23.2 Shoreline Hazards 54 Article XXIV Amendment 55 Section 24.1 Amendment to Declaration 55 Section 24.2 Effect of Amendment 55 Section 24.3 Required Approvals 55 Section 24.4 Requested Amendment; Legislative Change 56 Article XXV Term; Termination 56' Article XXVI General Provisions 56 Section 26.1 Notice 56 Section 26.2 Captions; Construction 57 Section 26.3 Severability 57 Section 26.4 Rule Against Perpetuities 57 Section 26.5 Mortgage of Lots 57 Section 26.6 Power of Attorney 57 Section 26.7 Gender 58 Section 26.8 Interpretation 58 Section 26.9 References to Declaration in Deeds 58 Section 26.10 Incorporation of Exhibit 58 Section 26.11 Rights of Enforcement 58 9M716 26015\3\158478.5 vii Page rii 49 BLACK SAND BEACH AT MAUNA LANI DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS THIS DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS (this "Declaration") is made as of July 13, 1999, by SEA CLIFF DEVELOPMENT, LLC, a Delaware limited liability company ("Developer"). Developer is the owner of that certain real property located in the County of Hawaii, State of Hawaii, described in Exhibit "A" attached hereto. Developer desires to develop the Property (as defined in Section 1.51) as a first-class residential subdivision, and intends by this Declaration to impose upon the Property certain covenants, conditions, restrictions and easements under a general plan of development in order to provide a flexible and reasonable procedure for the overall development of the Property. Developer further intends by this Declaration to provide and establish a method for the administration, maintenance, preservation, use, regulation and enjoyment of the Property and the Project (as defined in Section 1.50). Article I Definitions Defined terms appear throughout this Declaration with the initial letter of each such term capitalized. Unless the context clearly requires otherwise, the terms set forth in this Article I and used in this Declaration are defined and/or described as set forth below; provided, however, that this Article I may not include all the defined terms used in, or incorporated into, this Declaration. Section 1.1 Incorporation of Definitions. Each of the defined terms contained in Article I and elsewhere in that certain Declaration of Covenants and Restrictions (Mauna Lani Resort Association) dated June 3, 1982, filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii as Document No. 1120889 and also recorded in the Bureau of Conveyances of the State of Hawaii in Liber 16425 at Page 203, as amended and restated in its entirety by Fourth Amendment to the Mauna Lani Resort Association Declaration of Covenants and Restrictions dated January 8, 1987, recorded on January 18, 1987 in the Office of the Assistant Registrar of the Land Court of the State of Hawaii as Document No. 1432988 and also recorded in the Bureau of Conveyances of the State of Hawaii in Liber 20284 at Page 384, and as further amended from time to time (the "Master Declaration"), unless separately defined in this Article I of this Declaration, is incorporated into this Declaration by this reference. In the event any of the terms defined in the Master Declaration are otherwise defined in this Declaration, the definition contained herein shall control in the interpretation of this Declaration (but shall not affect the Master Declaration) notwithstanding any provision to the contrary, including Section 4.1, contained in this Declaration. Any defined term preceded by the term "Master Declaration" shall refer to and describe the term defined as set out in the Master Declaration, independent of the term as defined in this Declaration. 99-0716 26015V\158478.5 Page I Section 1.2 "Access and Utility Easement Area(s)" means and refers to those areas, if any, designated as "Access and Utility Easement" on the Plot Plans or pursuant to the Design Guidelines. Section 1.3 "Archaeological Feature(s)" means the burial site(s) and other items or areas of archaeological significance and preservation status, if any, affecting or which may affect portions of the Property, as shown on a Plot Plan, or by professional archaeological survey of the Property, or portions thereof, approved by Developer and, if applicable, the County. Section 1.4 "Articles of incorporation" or "Articles" means the Articles of Incorporation of the Association, as filed or to be filed with the Director of the Department of Commerce and Consumer Affairs of the State of Hawaii, as such Articles may be amended from time to time, or any successor thereto. Section 1.5 "Assessment Lien" means the lien created and imposed by Section 7.1. Section 1.6 "Assessments" include the following: 1.6.1 "Benefitted Assessment" means the amount which is levied and assessed against Lots receiving benefits, items or services provided to less than all Lots within the Property, as provided in Section 7.5. 1.6.2 "Capital Improvement Assessment" is defined in Section 7.6. 1.6.3 "General Assessment" means the amount which is levied and assessed each year against each Lot to fund the actual and estimated costs and expenses of the Association applicable to all Lots within the Property, as provided in Section 7.3. 1.6.4 "Master Association Assessments" means those assessments that are owed and payable to the Master Association pursuant to the Master Declaration, as referenced in Section 7.7. 1.6.5 "Reconstruction Assessment" is defined in Article 11.1. 1.6.6 "Special Assessment" means the amount which is levied and assessed against a Lot.for PPurpose of enforcing the provisions of this Declaration and/or the Design Guidelines against an-Ciwner or such Owner's Lot as provided in Section 7.4. Section 1.7 "Association" means the 49 Black Sand Beach at Mauna Lani Owners Association, its successors and assigns. Section 1.8 "Association Land" means such part or parts of the Property and such Improvements thereon, and other real or personal property, in which the Association at any time and from time to time owns an interest. Such interest may include, without limitation, estates in fee, leaseholds or easements. 99-0715 260153\158478.5 Page 2 Section 1.9 "Association Rules" means the rules and regulations, if any, adopted by the Association pursuant to Section 5.6. Section 1.10 "Beach Club" means the Improvements, facilities, amenities and appurtenances, including any related parking area(s), comprising the 49 Black Sand Beach Club (or similarly constituted facility), to the extent conveyed to the Association as Association Land or included in the Common Areas. Section 1.11 "Benefitted Expenses" means the actual and estimated costs and expenses of the Association that are incurred upon the request of the Owner of a Lot for specific items or services relating to the Lot or such Owner, or that are incurred or anticipated to be incurred by the Association pursuant to this Declaration for providing specific items or services relating to or benefitting less than all Lots within the Property or less than all Owners, as determined by the Board pursuant to Section 7.5. Section 1.12 "Board of Directors" or "Board" means the Board of Directors of the Association, being the body responsible for the administration of the Association. Section 1.13 "Building" shall mean a building or structure constructed on a Lot or on any portion of the Common Areas. Section 1.14 "Bureau" means the Bureau of Conveyances of the State of Hawaii. Section 1.15 "Bylaws" means the Bylaws of the Association adopted in accordance with the Articles, as amended from time to time. Section 1.16 "Coastal Trail" refers to the lateral shoreline access trail described in the Public Access Plan, as and to the extent affecting portions of the Property, being located approximately along and within Easement 4 shown on the File Plan. Section 1.17 "Common Areas" means all real property, together with the Improvements or amenities thereon, and personal property in which the Association now or hereafter holds any interest for the common use and enjoyment of all or any group of Owners, together with those areas that the Association is responsible for maintaining and/or operating pursuant to this Declaration or pursuant to a separate agreement. SectF(5ri; l.18 "Common Expenses" means the actual and estimated costs incurred or anticipated to be incurred by the Association in administering, maintaining and operating the Common Areas, and in owning, leasing, operating or maintaining any portions thereof, including, but not limited to, the following: (a) Maintenance, management, operation, repair and replacement of the Association Land and the Common Areas, including the Private Roads and the Recreational Facilities, and all other areas in the Property that are managed or maintained by the Association; 990]15 26015\3\158478.5 Page 3 (b) Unpaid Assessments; (c) Maintenance by the Association of areas within the right-of-way of any public or private streets or other areas in the vicinity of the Property which may be provided for in this Declaration or pursuant to agreements with the County or Developer;, (d) Management and administration of the Association; (e) Utilities and services and related matters, including, but not limited to, water, electricity, gas, sewer, cable television, trash pick-up and disposal, which are provided to the Association or the Common Areas, landscaping maintenance and other services which generally benefit and enhance the value and desirability of the Property and which are provided to or for the benefit of the Association; (f) Insurance maintained by the Association as required or permitted herein; (g) Reasonable reserves for contingencies, replacements and other proper purposes, to the extent deemed appropriate by the Board; (h) The costs which the Board elects to incur to bond the members of the Board, officers of the Association, any professional managing agent or any other person handling the funds of the Association; (i) Taxes paid by the Association; (j) Amounts paid by the Association for discharge of any lien or encumbrance levied against the Common Areas or portions thereof; (k) The costs incurred by any committees established by the Board; (1) The costs of security guards and any other security systems or services installed, operated or contracted for by the Association (including without limitation patrols for the Common Areas), as provided in Section 9.1, but excluding the cost of security service, if any, to individual Lots as described in Section 9.2; and _ , _(n) Other expenses incurred by the Association for any reason whatsoever in connection with thetommon Areas, or the costs of any other item or items designated by, or to be provided or performed by the Association pursuant to this Declaration, the Articles, Bylaws, Association Rules or Design Guidelines, or in furtherance of the purposes of the Association or in the discharge of any duties or powers of the Association. Section 1.19 "Community Design Committee" or "CDC" means the Mauna Lani Resort Community Design Committee established pursuant to Article V, Section 4 of the Master Declaration. 99W15 26015\3\158478.5 Page 4 Section 1.20 "Community-Wide Standard" means the standard of conduct, construction, maintenance, repair or other activity generally prevailing throughout the Project, and consistent with a first-class residential community. Such standard may be more specifically determined and set forth by the Board. Section 1.21 "County" means the County of Hawaii. Section 1.22 "Developer" means Sea Cliff Development, LLC, a Delaware limited liability company, and its successors or assigns. A Person shall be deemed a successor and/or assign of Developer for purposes of this Declaration only if specifically so designated in a duly Recorded written instrument as a successor or assign of Developer under this Declaration, and such Person shall be deemed a successor or assign of Developer only as to the particular rights or interests of Developer under this Declaration that are specifically designated in the Recorded written instrument. Any such instrument may be limited to specific rights of Developer hereunder and be subject to such conditions and limitations as Developer may impose in its sole and absolute discretion. Section 1.23 "Declaration" means this instrument, as it may be amended from time to time. Section 1.24 "Design Documents" means the Master Declaration, the Master Design Guidelines, this Declaration and the Design Guidelines. Section 1.25 "Design Guidelines" means the rules, regulations, restrictions, architectural and construction standards and design guidelines governing improvements to the Property, as set forth in Article XIV of this Declaration, and such supplementary standards and guidelines as may be adopted by Developer or the Board pursuant to Section 14.24. Section 1.26 "Dwelling Unit" means any Building or portion of a Building situated upon a Lot designed and intended for use and occupancy for Single-Family residential purposes and includes guest houses and servants quarters. Section 1.27 "Excavation" means any grading of the surface of the land or any disturbance of the surface of the land, except temporary disturbances for planting approved vegetation, which results in the removal of earth or rock or other substance to a depth of twelve inches below the natural surface of the land. -'SectrM:1.28 "File Plan" refers to the file plan for the Project, being File Plan No. 2246 recorded in the Bureau of Conveyances of the State of Hawaii, as may be amended by Developer in accordance with this Declaration. Section 1.29 "Final Transition Date" means that date set forth in Section 6.8 on which Developer's control of the Association terminates. Section 1.30 "First Mortgage" means a mortgage held by an institutional lender, which is the first and most senior of all Mortgages upon the same property. 99-0715 26015\3\158478.5 Page 5 Section 1.31 "First Mortgagee" means the holder of a First Mortgage. Section 1.32 "Improvement" means buildings, parking areas, loading areas, fences, walls, hedges, plantings, poles, driveways, ponds, lakes, signs, changes in any exterior color or shape, Excavation and all other site work, including, without limitation, grading, road construction, utility improvements, removal of trees or plantings and so forth, and any new exterior construction or exterior improvement which may not be included in the foregoing. "Improvement" does not include turf, shrub, or tree repair or replacement of a magnitude which does not change exterior colors or exterior improvements. "Improvement" does include both original improvements and all later changes and improvements. Section 1.33 "Lot" means any area of the Property, whether developed or undeveloped, which is designated as a residential lot on the File Plan, the Subdivision Map, or any other subdivision map or file plan Recorded by or with the consent of Developer. Section 1.34 "Majority" means those votes, Owners, Members, or other group, as the context may indicate, totalling more than 50% of the total eligible number. Section 1.35 "Master Association" means the Mauna Lani Resort Association, a` nonprofit corporation, and its successors for similar purposes, as described in the Master Declaration. Section 1.36 "Master Declaration" means that certain Master Declaration described at Section 1.1 of this Declaration. Section 1.37 "Master Design Guidelines" means the rules, regulations, restrictions, architectural and construction standards and design guidelines applicable to the design and construction of improvements to residential property within the Mauna Lani Resort, including the Property described in this Declaration, pursuant to Article V of the Master Declaration, as amended from time to time. Section 1.38 "Mauna Lani Resort" means that planned development created by, described in and subject to the Master Declaration, of which the Project described in this Declaration is part. "Mauna Lani Entities" refers to, collectively, Tokyu Corporation, a corporation organized under the laws of Japan ("Tokyu"), and its affiliates in connection with ownership and/or development of property in the Mauna Lani Resort. Section 1.39 "Member" means every Person who is entitled to membership in the Association, as provided in Section 6.1. Section 1.40 "Membership" means a membership in the Association. Section 1.41 "Mortgage" means any Recorded or otherwise perfected instrument, which is not a fraudulent conveyance under Hawaii law, and which is given in good faith and for valuable consideration as security for the performance of an obligation, including, without limitation, a deed of trust or agreement of sale, but shall not include any instrument creating or evidencing solely 99-0715 Page 6 26015\3\158478.5 a security interest arising under the Hawaii Uniform Commercial Code (Hawaii Revised Statutes Chapter 490, as amended). Section 1.42 "Mortgagee" means the holder of a note or other interest secured by a Mortgage. Section 1.43 "Mortgagor" means the party executing a Mortgage as obligor. Section 1.44 "Occupant" means any Person, other than an Owner, in rightful possession of any portion of the Property, whether as a guest, tenant, pursuant to the Public Access Plan, or otherwise. Section 1.45 "Owner" or "Lot Owner" means the Record owner, whether one or more Persons, including Developer, of fee simple title, whether or not subject to any Mortgage, of any Lot, including contract purchasers, but excluding those having such interest merely as security for the performance of an obligation. If a Lot is sold under a Recorded agreement of sale, or is leased for a term of thirty or more years under a Recorded lease, the purchaser or lessee, respectively (rather than the fee owner) shall be considered the Owner. Section 1.46 "Person" means a natural person, a corporation, a partnership, a limited liability entity, a trustee or other entity capable of holding title to real property, and such holder's respective heirs, personal representatives, successors and assigns. Section 1.47 "Plot Plan(s)" means and refers to the individual lot plot plans established by. Developer for each Lot pursuant to Section 14.3. Section 1.48 "President" means the duly elected or appointed president of the Association. Section 1.49 "Private Roads" mean any street, roadway, drive, sidewalk, walkway, path or other right-of-way included within the Common Areas which have not expressly been dedicated to the public use (and include, without limitation, the streets and rights-of-way within the Common Areas designated as private access ways and public utility easements). Section 1.50 "Project" means the planned development created by and subject to this Declaration coosisg;*ofthe Property and all of the Improvements now or hereafter located thereon as described in this Declaration. Section 1.51 "Property" means the real property described in Exhibit "A" attached hereto (subject to withdrawal of portions thereof in accordance with Section 20.9), and all easements, rights, appurtenances and privileges belonging or in any way pertaining thereto. Section 1.52 "Public Access Plan" means and refers to the Public Access Plan for Sea Cliff Development at Mauna Lani Resort, dated February 1999, accepted by the County Planning 99-0715 26015\31158478.5 Page 7 Department February 18, 1999, as may be amended or supplemented by agreement between the County and Developer or the Board. Section 1.53 "Record", "Recorded", "Recording", "Recordation" or a like reference means an instrument of record in, or the act of recording or filing or having recorded or filed an instrument with the Bureau and/or the Department of Commerce and Consumer Affairs of the State of Hawaii. Section 1.54 "Recreational Facilities" means the recreational facilities, located on the Property from time to time and included within the Common Areas, including the Beach Club, parks and playgrounds, if any, and such other areas and facilities within the Common Areas used or intended for or in connection with any recreational or social purpose or activity, together with the Improvements, facilities and appurtenances thereon or relating thereto. Section 1.55 "Single-Family" means (a) a group of one or more persons each related to the other by blood, marriage or legal adoption, or (b) a group of no more than five unrelated individuals who maintain a common household in a Dwelling Unit. Section 1.56 "Special Use Fees" means special fees that an Owner, Occupant or any= other Person is or may be obligated by this Declaration or the Association Rules to pay to the Association for use of or access to an amenity or facility within the Common Areas, including without limitation the Recreational Facilities, or for the granting of a right or privilege with respect thereto, over, above, and in addition to any Assessment hereunder. Section 1.57 "Subdivision Map" means the subdivision map dated June 21, 1999, prepared by Rodney M. Kawamura, licensed professional land surveyor, showing the subdivision of Lot 2 of Mauna Lani Resort South Course Subdivision (File Plan 2199) into Lots 1 to 55, inclusive, and designation of Easements 1 to 5, inclusive, approved by the County on June 25, 1999, as Subdivision No. 7129. Article II Statement of Purpose and Imposition of Covenants Developer intends to develop the Property, or portions thereof, by subdivision and otherwise into various Lots and the Common Areas, and intends to develop, sell and/or otherwise convey the Lots dtd Common Areas. Developer hereby declares that all of the real property comprising or constituting the Property is and shall be held, conveyed, hypothecated, encumbered, leased, occupied, built upon or otherwise used, improved or transferred, in whole or in part, subject to this Declaration, as amended or modified from time to time in accordance with the terms hereof, provided, however, that property, if any, that is dedicated to the public or a governmental entity for public purposes shall not be subject to this Declaration while owned by the public or the governmental entity, although restrictions imposed in this Declaration upon the Owners and Occupants concerning the use and maintenance of such public areas shall at all times apply to the Owners and Occupants. This Declaration is declared and agreed to be in furtherance of a general plan for the subdivision, improvement and sale of the Property and is established for the purpose of enhancing and perfecting 99-0715 26015\3\158478.5 Page 8 the value, desirability and attractiveness of the Property, the Project and every part thereof. All of this Declaration shall run with the Property and every part thereof for all purposes and, as and to the extent provided herein, shall be binding upon and inure to the benefit of Developer and all other Persons having any right, title or interest in the Property or any part thereof, and their heirs, personal and legal representatives, successors and assigns. The Subdivision Map, the File Plan, and any and all general plan maps, development plans, Plot Plans or depictions of proposed improvements to areas surrounding the Property and the Project are intended to show only the layout, location, and dimensions of the Lots and are not intended to be and do not constitute any other representation or warranty by Developer. Article III Property Rights Section 3.1. Owners' Right of Enjoyment. 3.1.1. Every Owner shall have a nonexclusive easement for use and enjoyment in and to the Association Land, the Private Roads and the Recreational Facilities, subject to: (a) All of the easements, covenants, conditions, restrictions, limitations and other- provisions contained in this Declaration, or in other applicable Recorded documents; (b) The right of the Board to establish rules and regulations pertaining to or restricting the use of the Association Land, the Private Roads and the Recreational Facilities by Owners, Occupants or other Persons, including rules limiting the number of individuals per Lot or per Owner entitled to use rights and benefits relating to the Beach Club and other amenities or facilities; (c) The right of the Board to limit the number of guests of Owners and Occupants and to limit the use of the Association Land, the Private Roads and the Recreational Facilities, by Persons who are not Owners, and to charge fees for use, admission, membership and other Special Use Fees; (d) The right of the Board to permit non-Member use of the Association Land, the Private Roads and the Recreational Facilities, upon such terms and conditions as may be established by the Board; (e) The right of the Board to suspend the right of an Owner, Occupant or any Person (including without limitation a member of the family of an Owner) to use the Recreational Facilities or any designated portion thereof during any time in which any Assessment assessed against such Owner or such Ownef's L _%Tnains unpaid and delinquent; (f) The right of the Association, acting through the Board, to dedicate or transfer all or any part of the Association Land to any public or private agency, authority, or utility for such purposes and subject to such conditions or agreements as may be agreed to by the Board; and 99-0715 Page 26015U\158478.5 9 (g) The restrictions or limitations, if any, contained in any deed or amendment to this Declaration conveying to the Association or subjecting to this Declaration the Association Land or any portion thereof. 3.1.2. Nothing herein shall be deemed or interpreted to grant to the Association, or to any Owner or Member, any ownership interest in property, including Association Land, the Private Roads or the Common Areas, unless and to the extent specifically conveyed to the Association, or to an Owner or Member, in this Declaration or by separate agreement. Section 3.2. Delegation of Use. No Owner may delegate that Owner's right of use and enjoyment of the Association Land, the Private Roads or the Recreational Facilities to any Person, except to the members of that Owner's immediate family, to Occupants of that Owner's Lot, or to that Owner's guests, in each case as may be permitted by the Association Rules and subject to regulation by the Board and in accordance with such procedures as the Board may adopt. Section 3.3 Waiver of Use. No Owner shall be exempt from personal liability for Assessments, nor shall any Lot owned by such Owner be released from the liens, charges and other provisions of the Master Declaration, this Declaration, the Articles, Bylaws, Association Rules, the Design Guidelines or the Master Design Guidelines, by voluntary waiver of, or suspension or restriction of, such Owner's right to the use and enjoyment of the Association Land, the Private Roads or the Recreational Facilities, or the abandonment of such Owner's Lot. Section 3.4 Indemnification for Use of Association Land. To the fullest extent permitted by law, the Association, and each Owner, Member and Occupant, shall indemnify and hold harmless Developer from any liability, claims or expenses, including attorneys' fees, arising from or relating to property damage or personal injury resulting in any manner from the use and/or enjoyment by the Association or such Owner, Member or Occupant, and their respective employees, agents, contractors, invitees and guests, of any portion of the Association Land and/or Common Areas, including, without limitation, the Private Roads and the Recreational Facilities, and/or the Coastal Trail pursuant to the Public Access Plan. Section 3.5 The Francis H. Ii Brown Golf Courses. The Francis H. li Brown Golf Courses and their property and related facilities are privately owned, are not owned or operated by the Association or the Master Association, and are not within the Common Areas hereunder. No provision of this Declaration gives, or shall be deemed to give, any Owner, Occupant or Member any ownership interest in or the right to enter upon or use the Francis H. li Brown Golf Courses, or any membership rights in the Francis,ki. ii Brown Golf Courses, by virtue of ownership or occupancy of a Lot or Membership in the A 6ciation or the Master Association. Article IV Master Declaration and Master Association Section 4.1 Master Declaration. The Project is within and a part of the Mauna Lani Resort, and is subject to the Master Declaration and all of its provisions, as the same may be amended or supplemented from time to time. This Declaration supplements the Master Declaration, as to the 99-0715 26015\3\158478.5 Page 10 Property covered hereby, and, except as permitted under the Master Declaration, in the event of a direct conflict between the provisions of this Declaration and the Master Declaration, the provisions of the Master Declaration shall control. Section 4.2 Membership in Master Association. Every Lot Owner shall be a member of the Master Association. Membership in the Master Association shall be appurtenant to and may not be separated from the real property or real property improvement giving rise to the status of Lot Owner. Rights to and obligations of membership terminate upon termination of the status as a Lot Owner. Upon conveyance of a Lot Owner's entire interest in his property, the conveying Lot Owner shall be relieved of liability for assessments levied from and after the date of such conveyance. No Lot Owner may avoid the obligations of membership during the period when he is an Owner by nonuse of the Common Areas, renunciation or abandonment of his property or by any other act of abandonment or renunciation. Section 4.3 Voting Rights. The voting rights of the members of the Master Association shall be as set forth in the Charter and Bylaws of the Master Association. Section 4.4 Compliance. The Association constitutes a "Secondary Association" under the Master Declaration. The Association and Members thereof shall observe and comply with all applicable provisions of the Master Declaration. Article V Owners Association Section 5.1 Purpose of Association. The Association has been, or will be, incorporated as a non-profit corporation to serve as the governing body for all the Owners for the protection, improvement, alteration, maintenance, repair, replacement, administration and operation of the Association Land and the Common Areas, the assessment and collection of expenses, payment of losses, disposition of casualty insurance proceeds, and other matters as provided in this Declaration, the Articles, Bylaws, Design Guidelines and Association Rules. The Association shall not be deemed to be conducting a business of any kind, and all funds received by the Association shall be held and applied by it for the benefit of the Owners in accordance with the provisions of this Declaration, the Articles and the Bylaws. Section 5.2 Articles and Bylaws. In addition to the rights and powers of the Association set forth in this Declaration, the Association and its directors, officers, employees, agents and Members shall have such rights, powers and duties as are set forth in the Articles and Bylaws and are not inconsi'sten 4}tir law, the Master Declaration or this Declaration. Such rights, powers and duties, subject to the approval thereof by any agencies or institutions deemed necessary by Developer, may encompass any and all things which a natural person could do or which now or hereafter may be authorized by law, provided the Articles and Bylaws are not inconsistent with the provisions of the Master Declaration or this Declaration and are necessary, desirable or convenient in furtherance of the purposes set forth in this Declaration. After incorporation of the Association, a copy of the Articles and Bylaws shall be available for inspection by Owners at the office of the Association during reasonable business hours. 99-0715 Page 11 260153\158478.5 Section 5.3 Board of Directors and Officers. The affairs of the Association shall be conducted by the Board and such officers as the Board may elect or appoint in accordance with the Articles and the Bylaws, as the same may be amended from time to time. The number, term, election and qualifications of the Board shall be as set forth in the Articles and the Bylaws. The Board may, by resolution, delegate portions of its authority to an executive committee or to other committees, to officers of the Association or to agents and employees of the Association, but such delegation of authority shall not relieve the Board of the ultimate responsibility for management of the affairs of the Association. Action by or on behalf of the Association may be taken by the Board or any duly authorized executive committee, officer, agent or employee without a vote of the Members, except as may be otherwise specifically provided in this Declaration. The Board may also appoint a manager or managing agent who shall, subject to the direction of the Board, be responsible for the day-today operation of the Association. The Board shall determine the compensation to be paid to the manager or managing agent. Section 5.4 Duties and Obligations of the Association. In addition to any other duties and obligations of the Association set forth in this Declaration or pursuant to applicable law, the Association shall have the duty and obligation, subject to and in accordance with this Declaration, to do and perform the following for the benefit of its Members and for the maintenance and improvement. of the Project: (a) Acceptance of Property. The Association shall accept and hold title to all Association Land and other property from time to time conveyed to it by Developer, as provided in Section 5.9. The Association may also acquire and accept title to any other property. Nothing herein shall be construed to authorize the Association to acquire or invest in property simply for the purpose of acquiring income or otherwise making a financial profit therefrom, and the Association shall not carry on any business, trade, association or profession for profit, provided, however, that the Association may charge Special Use Fees or other reasonable fees for or relating to use of the Recreational Facilities and other Association Land to help defray the costs of construction, maintenance, repair or operation of the Association Land, the Recreational Facilities or other property owned or controlled by the Association. (b) Annual Membership Meetings. The Association shall hold an annual membership meeting of the Members, as provided by and in accordance with the Bylaws. (c) Accounting. The Association, at all times, shall keep, or cause to be kept, true and correct records of account in accordance with generally accepted accounting principles, which shall specify in reasonabfedetail all expenses incurred and funds accumulated from Assessments or otherwise. - (d) Records. The Association shall, upon reasonable written request and during reasonable business hours, make available for inspection by each Owner, Member and Mortgagee the books, records and financial statements of the Association together with current copies, as amended from time to time, of this Declaration and the Articles, Bylaws, Design Guidelines and Association Rules. Developer shall be under no obligation to make its own books and records available for inspection by any Owner, Member, Mortgagee or other person. The books and records of the Association may be audited or unaudited as the Board from time to time may determine. 99-0715 Page 12 26015\3V 58478.5 (e) Public Access Plan. The Association shall comply with all applicable requirements of, and shall implement and enforce, the Public Access Plan as it affects the Property or portions thereof, including the Common Areas and the Coastal Trail within certain Lots. Appropriate portions of the Common Areas, as designated by Developer, shall be held by the Association in appropriate satisfaction of the Public Access Plan, and public access shall be permitted in accordance therewith. The Association, through the Board, shall further establish and enforce reasonable controls and regulations relating to public access, pursuant to and in accordance with the Public Access Plan, and such public access shall be subject to such controls and regulations. A copy of the Public Access Plan shall be available at the principal office of the Association to each Owner or other Person reasonably entitled thereto, upon request. Section 5.5 Powers and Authority of the Association. The Association shall have all of the powers set forth in this Declaration, the Articles, the Bylaws, the Design Guidelines and the Association Rules, together with those powers of an association granted under the laws of the State of Hawaii, subject, however, to such limitations upon the exercise of such powers as are expressly set forth in the Master Declaration, this Declaration, the Articles and Bylaws. The Association shall have the power to do any and all lawful things that may be authorized, required or permitted to be done under and by virtue of said restrictions, and to do and perform any and all acts that may be necessary or proper for or incidental to the exercise of any of the express powers of the Association for the peace, health, comfort, safety and/or general welfare of the Owners and Members. Without in any way limiting the foregoing, the Association and the Board shall have the following powers and authority: (a) Riaht of Entrv. The Board, its agents and representatives shall have the power and right at any time and from time to time, without liability to any Owner or Occupant for trespass, damage or otherwise, to enter upon any Lot to enforce any provision of the Master Declaration, this Declaration, the Articles, Bylaws, the Master Design Guidelines, the Design Guidelines and/or the Association Rules, or to maintain and repair the Improvements located on said Lot either as provided in said documents, or if for any reason whatsoever the Owner or Occupant fails to maintain and repair any portion of a Lot as required by said documents. (b) Right to Bring Legal Action. Subject to Section 5.10, the Association shall have the power and authority, either in its own name, on its own behalf or on behalf of any Owner(s) who consent thereto, to commence and maintain actions and suits to restrain and enjoin any breach or threatened breach to the Master Declaration, this Declaration, the Articles, Bylaws, the Master Design Guidelines, the Design Guidelines and/or the Association Rules and to enforce, by mandatory injunction or otherwise, all of the provisions of said documents. The costs of any such action or suit, including reaso'naF? i'a rney's fees, shall be paid to the prevailing party. (c) Easements. In addition and without limitation to the easements granted or reserved in Article XVI or elsewhere in this Declaration, the Association is authorized and empowered to grant to any third parry, on such terms as the Board may approve, upon, across or under real property owned or controlled by the Association, such permits, licenses, easements and rights-of-way for sewer lines, water lines, underground conduits, storm drains, telephone, television and telecommunication cable, and other similar public or private utility purposes, roadways or other purposes as may be reasonably necessary and appropriate for the orderly maintenance, preservation and enjoyment of the Project or 994715 Page 1] 26015U\158478.5 the Common Areas or for the preservation of the health, safety, convenience and welfare of the Owners. (d) Manager or Managing A ent. All or any of the powers, duties and rights of the Association or the Board, as provided by law and herein, may be delegated to a manager or managing agent, subject to the direction and control of the Board. Any agreement for management, or any other contract providing for services to the Association, shall not exceed a term of three years, which term may be renewed by agreement of the parties for successive one-year periods. The Board shall not be liable for any omission or improper exercise by a manager of any power, duty or right delegated to the manager by written instrument executed by or on behalf of the Association or the Board. (e) Contracts with Others for Performance of Association's Duties. Subject to the restrictions and limitations contained herein, the Association may enter into contracts and transactions with others, including Developer and any affiliated Persons, for the performance of the Association's duties and for other purposes deemed necessary by the Association, including, without limitation, maintenance and repair services, professional services and utility services. Such contracts or transactions shall not be invalidated or in any way affected by the fact that one or more directors or officers of the Association or members of any committee may be employed by or otherwise connected with Developer or its affiliates or other Person, provided that the fact of such interest shall be disclosed- or known to the other directors acting upon such contract or transaction, and provided further that the; transaction or contract is fair and reasonable. Any such director, officer or committee member may be counted in determining the existence of a quorum at any meeting of the Board or committee of which he is a member authorizing any contract or transaction described above or granting or denying any approval sought by Developer or its affiliates, or other Person, and may vote there to authorize or deny any such contract, transaction or approval with like force and effect as if such director, officer or committee member were not so interested. (f) Special Use Fees. The Association is authorized to impose, bill for, sue for, collect, administer and disburse Special Use Fees, and the payment thereof shall be secured by the Assessment Lien. In establishing or adjusting the amounts of Special Use Fees from time to time, the Board, in its absolute discretion, may establish reasonable classifications as among Owners, Occupants and other Persons. (g) Implied Rights. The Association may exercise any other right or privilege given to it expressly by this Declaration, and every other right or privilege reasonably to be implied from the existence of any right or privilege given to it herein or reasonably necessary to effectuate any such right or privilege. Section 5.6 Association Rules. The Board shall be empowered (but not required) to adopt, amend or repeal the Association Rules, effective upon adoption or at such later time as may be specified therein, and binding upon all Persons subject to this Declaration and governing the use and/or occupancy of any part of the Property, including Lots. The Association Rules may include the establishment of a system of fines and penalties enforceable as Special Assessments. The Association Rules shall govern such matters in furtherance of the purposes of the Association, including, without limitation, the use of the Common Areas; provided, however, that the Association Rules may not discriminate among Owners except as expressly provided or permitted herein, and shall not be 99-0715 Page 14 26015\3\158478.5 inconsistent with the Master Declaration, this Declaration, the Articles, Bylaws, the Master Design Guidelines or the Design Guidelines. The Association Rules shall have the same force and effect as if they were set forth in and were part of this Declaration and shall be binding on the Owners and Occupants, and all other Persons having any interest in, or making any use of, the Property. The Association Rules shall be available at the principal office of the Association to each Owner or other Person reasonably entitled thereto, upon request. In the event of any conflict between any provision of the Association Rules and any provisions of the Master Declaration, this Declaration, the Articles, Bylaws, the Master Design Guidelines or the Design Guidelines, the provisions of the Association Rules shall be deemed to be superseded by the applicable provisions of the Master Declaration, this Declaration, the Articles, Bylaws, the Master Design Guidelines and/or the Design Guidelines, to the extent of any such conflict. The Association Rules may include reasonable controls and regulations relating to public access pursuant to the Public Access Plan, and, to the extent not specifically stated therein, shall be deemed to include such controls and regulations on public access as set forth in the Public Access Plan. Section 5.7 Indemnification. To the fullest extent permitted by law, every director and officer of the Association, every Board-appointed committee member and Developer (to the extent a claim may be brought against Developer by reason of its appointment, removal or control over members of the Board) shall be indemnified by the Association, and every other Person serving as an employee or direct agent of the Association, or on behalf of the Association as a member of a committee or otherwise, may, in the discretion of the Board, be indemnified by the Association against all expenses and liabilities, including without limitation attorneys' fees, reasonably incurred by or imposed upon him in connection with any proceeding to which he may be a party, or in which he may become involved, by reason of his being or having served in such capacity on behalf of the Association (or in the case of Developer by reason of having appointed, removed or controlled or failed to control members of the Board or any settlement thereof, whether or not he is a director, officer or member of a Board-appointed committee or serving in such other specified capacity at the time such expenses are incurred, provided that the Board shall determine, in good faith, that such officer, director, member of a Board-appointed committees or other person, or Developer, did not act, fail to act, or refuse to act with gross negligence or fraudulent or criminal intent in the performance of his duties. The foregoing rights of indemnification shall be in addition to and not exclusive of all other rights to which such persons may be entitled at law or otherwise. Without limiting the foregoing, the Association shall have the powers and duties of indemnification set forth in Hawaii Revised Statutes §4158-6, as it may be amended from time to time. Section 5.8 Non-Liability of Officials. To the fullest extent permitted by law, neither Developer, the Pres-4mii, the Board or any other committees of the Association or any member thereof, nor any directors or officers of the Association, shall be liable to any Member, Owner, Occupant, the Association or any other Person for any damage, loss or prejudice suffered or claimed on account of any decision, approval or disapproval of drawings or specifications (whether or not defective), course of action, act, inaction, omission, error, negligence or the like made in good faith and which Developer, the President, the Board, or such committees or Persons reasonably believed to be within the scope of their respective duties. Section 5.9 Duty to Accept Association Land and Common Areas. The Association shall accept title to, or other designated interests in, any property, including any Improvements thereon and 99-0715 2601513\158478.5 Page 15 personal property transferred to the Association by Developer, and equipment related thereto as designated by Developer, together with the responsibility to perform any and all duties associated therewith as designated by Developer, which, upon conveyance or dedication to the Association, the Association shall maintain at its expense for the benefit of the Members as provided in this Declaration. Property interests transferred to the Association by Developer may include fee simple title, easements, leasehold interests and licenses to use; provided, however, that any property or interest in property transferred to the Association by Developer shall, except to the extent otherwise specifically approved by resolution of the Board, be transferred to the Association free and clear of all liens and encumbrances except as follows: (i) the lien for property taxes and assessments not then due and payable; (ii) the terms of this Declaration; (iii) easements, rights-of-way, reservations, covenants, conditions, restrictions and equitable servitudes or other non-financial encumbrances as Developer in its discretion may deem appropriate; and (iv) such financial encumbrances as may be reasonably accepted and assumed by the Association and specifically approved by resolution of the Board. The property or interest in property transferred to the Association by Developer shall not impose any unreasonable or special burden on the Association other than the normal burdens of ownership and/or maintenance of property and the operation of facilities thereon. Without limiting the generality of any other provision of this Section 5.9 or rights reserved to Developer in this Declaration, at any time following the conveyance of property by Developer to the Association, Developer may construct, reconstruct, refinish, alter or repair any Improvement upon, make or create any excavation or fill upon, change the natural or existing drainage of or remove or plant any trees, shrubs or ground cover upon such property, if Developer shall determine that any such work: (a) is reasonably necessary for the installation of utilities serving any portion of the Property; (b) is reasonably necessary for the construction of any facility to be used by or for the benefit of the Association or Owners; (c) is desirable in order to provide or improve access to or enhance the use and enjoyment of any portion of the Property or the Project; or (d) is desirable to protect, support or preserve any portion of the Property or the Project. Section 5.10 Litigation. After the Final Transition Date, no legal, judicial or administrative proceeding shall be commenced or prosecuted by the Association unless approved by the vote or written assent of the Members representing at least 75 percent of the total votes of the Class "A" Membership. This Section 5.10 shall not apply, however, to: (i) actions brought by the Association to enforce the provisions of the Master Declaration, this Declaration, the Bylaws, the Association Rules or the Design Guidelines (including without limitation, the foreclosure of liens); (ii) the imposition and collection of Assessments as provided in Article VII; (iii) proceedings involving challenges to ad valorem taxation; (iv) counterclaims brought by the Association in proceedings instituted against it; or (v) other actions where proceedings have been brought against the Association. Article VI - Membership and Voting Section 6.1 Membership in Association. Members of the Association shall be (i) Developer (irrespective of whether Developer is the owner of a Lot), for so long as Developer is entitled to Class "B" Membership pursuant to Section 6.2 and (ii) each Owner (including Developer) of a Lot that is subject to Assessment under this Declaration. The Person who constitutes the Owner of a Lot shall automatically be the holder of the Membership in the Association appurtenant to that Lot, and such Membership shall automatically pass with fee simple title to the Lot. No Owner, whether one 99-0715 26015\3\158478.5 Page 16 or more Persons, shall have more than one Membership per Lot owned, but all of the Persons owning each Lot shall be entitled to rights of Membership and of use and enjoyment appurtenant to ownership of a Lot, subject to any limitations relating to multiple party ownership of Lots set forth in any Association Rules. The Membership rights of a corporation, partnership or limited liability entity Owner shall be exercised and exercisable only by the individuals (not to exceed five) designated from time to time by the Owner in a written instrument provided to the Secretary of the Association, subject to the provisions of this Declaration, the Bylaws and any Association Rules. Section 6.2 Membership Classes. The Association shall have two classes of Membership, Class "A" and Class "B", as follows: 6.2.1 Class "A". Class "A" Members shall be all Lot Owners except the Class "B" Member, if any. Each Class "A" Member owning a Lot shall be entitled to one vote for each Lot owned by such Member. In any situation where a Member is entitled personally to exercise the vote for that Owner's Lot, and more than one person holds the interest in any such Lot, the vote for such Lot shall be exercised as such Persons among themselves determine, and the Secretary of the Association shall be notified of such designation prior to any meeting. In the absence of such notice to the Secretary and in the event more than one Person seeks to exercise the vote for the Lot, the vote shall be suspended and the Persons owning such Lot shall be considered absent. Any Owner of a Lot" which is leased may assign the voting right appurtenant to such Lot to the lessee, provided that a copy of the instrument of assignment is furnished to the Secretary of the Association prior to any meeting at which a vote is to be taken. 6.2.2 Class "B". The Class "B" Member shall be Developer and any successor of Developer who takes title for the purpose of development and sale, and who is designated as such in a Recorded instrument executed by Developer. The Class "B" Member shall have such rights as are specified in this Declaration and the Bylaws. The Class "B" Membership shall terminate and become converted to Class "A" Membership on the Final Transition Date, as that term is defined in Section 6.8. At such time, Developer shall call a meeting of the Members, as provided in the Bylaws for special meetings, to advise the Members of the termination of Class "B" status. Section 6.3 Transfer of Membership. The rights and obligations of a Member shall not be assigned, transferred, pledged, conveyed or alienated in any way except upon transfer of ownership to an Owner's Lot, and then only to the transferee of ownership to the Lot. A transfer of ownership to a Lot may be effected by deed, intestate succession, testamentary disposition, foreclosure of a Mortgage, or such other legal process as now in effect or as may hereafter be established under or pursuant to the laws of the State of Hawaii. Any attempt to make a prohibited transfer shall be void. Any transfer of owhrpto a Lot shall operate to transfer the Membership(s) appurtenant to said Lot to the new Owner thereof. Section 6.4 Membership Rights and Duties. The rights, duties, privileges and obligations of all members shall be those set forth in, and shall be exercised and imposed in accordance with, the provisions of this Declaration, the Bylaws and the Association Rules. 99-0715 26015\3\158478.5 Page 17 Section 6.5 Voting. Only Members shall be entitled to vote, and each Membership shall be entitled to only one vote. Unless otherwise provided in this Declaration or the Bylaws, any action by the Association that must have the approval of the Members of the Association before being undertaken shall expressly require the vote or written assent of a prescribed percentage of Members as set forth in this Declaration. Except as otherwise provided in this Declaration or in the Bylaws, the presence in person or by proxy of Members representing a Majority of the total Class "A" votes in the Association and the Class "B" Member, if such exists, shall constitute a quorum at all meetings of Owners. Unless this Declaration or the Bylaws requires a different percentage, the vote of the Class "B" Member, if such exists, and of Members representing a Majority of the Class "A" votes present at a meeting at which a quorum exists shall be the act of the Association and binding upon all Owners for all purposes. Section 6.6 Proxies. Any vote may be cast by a Member in person or by proxy. All proxies given by any Owner to another person to represent the Owner at meetings of the Association must be in writing and contain at least the following: W the date of the meeting of the Association for which the proxy is given, (ii) the printed name and signature of the Owner(s) giving the proxy, (iii) the Lot number for which the proxy is given, and (iv) the printed name of the person to whom the proxy is given. No proxy shall be irrevocable unless coupled with a financial interest in the Lot represented. A proxy may designate any person as proxy and may be limited as the Owner indicates. To be valid, a proxy must be delivered to the Secretary of the Association prior to the meeting to which it pertains. Unless otherwise clearly stated on the proxy form, the proxy shall be valid only for the meeting designated thereon and its adjournment, if any. Section 6.7 Pledge of Voting Rights as Security. Notwithstanding the foregoing provisions of this Article VI, in the event an Owner grants an irrevocable proxy or otherwise pledges the voting right appurtenant to the Membership with respect to his Lot to a Mortgagee as additional security, only the vote of such Mortgagee will be recognized in regard to such special matters if a copy of such proxy or other instrument pledging such vote has been delivered to the Secretary of the Association. In the event that more than one such instrument has been filed, the Association shall recognize the rights of the first Mortgagee to so file, regardless of the priority of the Mortgages themselves. Section 6.8 Developer's Control of Association. Notwithstanding anything in this Declaration to the contrary, until the Final Transition Date, Developer shall maintain control over the Association, including, without limitation: amendment of the Articles (through control of the Board); appointment of all majority of members of the Board; and appointment of the President. Until the Final Transition Date,-only Developer will be entitled to cast any vote with respect to the appointment of such directors as specified in the Bylaws or removal of such directors. The Final Transition Date shall be the first to occur of the following: (i) when one hundred percent (100%) of the total acreage of the Property in the Project has been conveyed to Persons other than Developer or developers holding title solely for the purpose of development and sale; (ii) such date as Developer, in its sole discretion, requires the Members to assume control of the Association; or (iii) December 31, 2010. In the event Developer voluntarily relinquishes control of the Association, Developer may reserve the right of prior written approval of certain actions by the Board including, without limitation, 99-0715 26015\3\158478.5 Page 18 the following: (i) any action that increases Assessments on property owned by Developer or imposes a Special Assessment on property owned by Developer, and (ii) any action that, in Developer's opinion, impairs or restricts Developer's ability to develop and market property within the Project or the operation of any part of the Project and other projects developed by Developer which are adjacent to or in the vicinity of the Project. Article VII Assessments Section 7.1 Creation of Lien and Personal Obligation. Each Owner, by acceptance of a deed or other conveyance of an interest in a Lot and/or title thereto, is deemed to covenant and agree to pay to the Association: General Assessments, Special Assessments, Benefitted Assessments and Master Association Assessments, as the foregoing Assessments, and any other such assessments as set forth in this Declaration or in the Master Declaration, may be established and collected from time to time, as provided in this Declaration or in the Master Declaration. The Assessments, together with interest thereon, late charges, attorneys' fees and court costs, and other costs of collection thereof, as hereinafter provided, shall be a continuing lien (the "Assessment Lien"), which Assessment Lien also secures payment of such other sums as provided in this Declaration, upon the Lot (or combined Lots as provided in Section 15.5) against which the Assessments are made. Each Assessment, together with, such interest and other costs, shall also be the personal obligation of the Owner of the Lot to which such Assessment relates. Section 7.2 Purpose of Assessments. The Assessments shall be used to promote the safety and welfare of the Owners, to enhance the quality of life within the Project, to preserve the value of the Project, and to pay the costs of administration of the Project and this Declaration and the covenants created hereby. To the extent a Lot has separately charged or metered security, gas, electrical, water, sewer, or other similar utility services, the cost of the same shall be the personal obligation of the Owner of such Lot. Section 7.3 General Assessments. 73.1 Each Owner shall pay General Assessments as provided in this Section 7.3. Except as otherwise specifically provided herein, payment of General Assessments shall be in such amounts and at such times as may be provided in the Articles and Bylaws or as determined by the Board. .3.2 Not later than thirty days prior to the beginning of each fiscal year of the Association, the Board shall make available for review by each Member at the Association's office during reasonable times a pro-forma operating statement or budget for the upcoming fiscal year which shall, among other things, estimate the total Common Expenses to be incurred for such fiscal year. The Board shall at the time determine the amount of the General Assessment to be paid by each Member and notify such Member. Such budget and General Assessment shall become effective unless disapproved at a meeting by Members representing a majority of the total Class "A" votes in the Association, and by the Class "B" Member if such exists. Each Member shall thereafter pay to the Association said General Assessments in monthly installments. Each such installment shall be due and payable on the date and in the manner specified by the Board. There shall be no obligation to call a 990715 26015\3\158478.5 Page 19 meeting of Members for the purpose of considering the budget except on petition of the Members, as provided for special meetings in the Bylaws, which petition must be presented to the Board within twenty days after delivery of the notice of General Assessments. In the event a proposed budget is disapproved or the Board fails for any reason to determine the budget for any fiscal year, then and until such time as a budget shall have been determined as provided herein, the budget in effect for the then current fiscal year shall continue for the succeeding fiscal year. 7.3.3 If the Board determines that the total General Assessments for the current year are, or will become, inadequate to meet all Common Expenses for whatever reason, including Common Expenses in excess of the estimated Common Expenses used in preparation of the Association's budget for that year, but excluding any Common Expenses allocated as Special Assessments or Benefitted Expenses, the Board shall then immediately determine the approximate amount of such inadequacy and issue a supplemental estimate of the Common Expenses and determine the revised amount of General Assessments to by paid by each Member for the balance of the year, and the date or dates when due. If the estimated total General Assessments for the current year prove to be excessive in light of the actual Common Expenses, the Association may, at the discretion of the Board, retain such excess as additional working capital or reserves, reduce the amount of the General Assessments for the succeeding year, or abate collection of General Assessments for such period as it deems appropriate. No reduction or abatement of General Assessments because of any such anticipated surplus may diminish the quantity or quality of services upon which the Common Expenses for the year in question are based. Section 7.4 Special Assessments. Special Assessments shall be levied by the Association against an Owner and his Lot to reimburse the Association for: 7.4.1 Costs incurred in bringing an Owner or his Lot into compliance with the provisions of the Master Declaration, this Declaration, the Articles, Bylaws, Association Rules, Design Guidelines or Master Design Guidelines; 7.4.2 Any other charge designated as a Special Assessment in this Declaration, the Articles, Bylaws, Association Rules or Design Guidelines; 7.4.3 Fines levied or fixed by the Board under Section 5.6 or as otherwise provided herein; and 7.4.4 Attorneys' fees, interest and other costs or charges provided to be paid as, or which are incurten connection with, a Special Assessment in accordance with this Declaration, the Articles, Bylaws, Association Rules or Design Guidelines. Section 7.5 Benefitted Assessments. The Board shall have the power and authority to specifically assess Lots receiving benefits, items or services provided to less than all Lots within the Property. Costs and expenses of the Association that are incurred upon the request of a Member for specific items or services relating to or benefitting such Member or such Member's Lot, or which are incurred pursuant to this Declaration, the Articles, Bylaws, Association Rules or Design Guidelines, for specific items or services relating to or benefitting certain Lots, shall be specifically assessed as Benefitted Assessments against the Lot(s) benefitted. 99W T5 26015V\158478.5 Page 20 Section 7.6 Capital Improvement Assessments. In addition to General Assessments, and any Special Assessments and Benefitted Assessments, the Board may levy in any fiscal year, upon the affirmative vote of Members representing a majority of the total Class "A" votes, and the Class "B" Member if such exists, a Capital Improvement Assessment, for the purpose of defraying, in whole or in part, the cost of any action or undertaking on behalf of the Association in connection with, or the cost of, any construction or replacement of capital improvements upon the Common Areas, including the necessary fixtures and personal property related thereto, to the extent the same in not covered by Reconstruction Assessments. All amounts collected as Capital Improvement Assessments may only by used for capital improvements and shall be deposited by the Board in a separate bank account for such purposes. Said funds shall not be commingled with any other funds of the Association and shall be deemed a contribution to the capital account of the Association by the Owners. Section 7.7 Master Association Assessments. Members shall pay their "proportionate share" (as that term is defined in the Master Declaration) of Master Association Assessments. Master Association Assessments shall be paid through the Board in such installments and in such manner as the Board shall require. The Board shall, on behalf of the Association, notify Members of their respective proportionate shares of Master Association Assessments, collect Master Association= Assessments from the Members, and appropriately pay such collected Master Association Assessments to the Master Association; provided, however, that such notification, collection and payment by the Association shall not abridge or otherwise affect each Member's responsibility and liability for payment of Master Association Assessments, in accordance with and pursuant to the Master Declaration, nor the rights of the Master Association (including lien rights) related thereto in accordance with the Master Declaration. Section 7.8 Rate of Assessment. General Assessments to be levied against each Lot for any fiscal year shall be determined by multiplying the budgeted Common Expenses, including reserves, by a fraction, the numerator of which shall be one (1), and the denominator of which shall be the total number of Lots within the Project. Capital Improvement Assessments and any Reconstruction Assessments shall be allocated among the Lots to which such Assessments relate, as determined in the discretion of the Board. Section 7.9 Date of Commencement of Assessments. Assessments shall commence as to all Lots on the first day of the month following the conveyance of the first Lot to an Owner other than Developer, or such later date as shall be determined by Developer with advance written notice to all Owners. Section 7.10 Developer's Assessment Obligations. Developer may annually elect, by notifying the Association in writing, either of the following alternatives as a method of satisfying its Assessment obligations hereunder: (a) pay the Assessments as set forth in Section 7.8 as an Owner of Lots; or (b) pay to the Association in the form of a subsidy the difference between the amounts received by the Association in Assessments from all Owners other than Developer and the amount of 99,0715 26015\3\158478.5 Page 11 the actual expenditures required to operate the Association during the fiscal year. In the absence of a written election by Developer at least sixty days prior to the end of the fiscal year, Developer shall pay on the basis set forth in this subparagraph (b). Payment under either of the foregoing options shall constitute full payment of all Assessment obligations of Developer under this Declaration. Nothing herein shall be interpreted to require Developer to establish, or pay over to the Association to establish, reserves or reserve accounts for capital improvements or for maintenance of any part of the Property. Section 7.11 Time and Manner of Payment; Late Charges and Interest. Assessments shall be due and payable by Owners in such manner and at such times as the Association shall designate. If not paid when due, but paid within ten days after its due date, each such Assessment shall have added to it a late charge equal to 10 percent of the amount of Assessment or such other charge as the Board may specify from time to time. Thereafter, any such delinquent Assessment and the applicable late charge shall bear interest from the tenth day after the date the Assessment was due at the rate of 12 percent per annum until paid. The Association may, in its discretion and without waiving the imposition of a late charge or interest in any other instance, waive the late charge and/or interest in any particular instance. A delinquent Owner shall also be liable for attorneys' fees and other related costs incurred by the Association as a result of such delinquency, and if any suit, action or arbitration proceeding is brought to collect any such Assessment or charge, then there shall be added to the" amount thereof costs of suit and reasonable attorneys' fees to be fixed by the court and included in any judgment or award rendered thereon. Section 7.12 No Offsets. All Assessments shall be payable in the amount specified in the Assessment or notice of Assessment and no offsets against such amount shall be permitted for any reason, including, without limitation, a claim that (a) the Association, the Board or Developer is not properly exercising its duties and powers as provided in this Declaration; (b) Assessments for any period exceed Common Expenses; or (c) an Owner has made, and elects to make, no use of the Common Areas or any portion thereof. Section 7.13 Reserves. Any reserves included in the Common Expenses which are collected as part of the General Assessments shall be deposited by the Association in a separate bank account to be held for the purposes for which they are collected and are to be segregated from and not commingled with any other funds of the Association, except to the extent that the Association's accountant deems it desirable to do otherwise on the basis of standard accounting principles in similar contexts or the laws, tax or otherwise, of the State of Hawaii or the United States relating to non-profit corporations or homeowners associations. Such reserves shall be deemed a contribution to the capital account of the Association by the Owners. The responsibility of the Board (whether while controlled by Developer or thi~' s "A" Members) shall be only to provide for such reserves, if any, as the Board in good faith deems reasonable, and neither Developer nor the Board nor any member thereof shall have any liability to any Owner or to the Association if reserves prove to be inadequate. Section 7.14 Certificate of Payment. Any Person acquiring an interest in any Lot shall be entitled to a certificate from the Association setting forth the amount of due but unpaid Assessments relating to such Lot, if any, and such Person shall not be liable for, nor shall any lien attach to the Lot in excess of, the amount set forth in the certificate, except for Assessments which occur or become due after the date thereof and any interest, costs, attorneys' fees and any late charges related to such Assessments. 990715 26015\3\158478.5 Page 22 Section 7.15 Rules Regarding Billing and Collection Procedures. The Board shall have the right to adopt rules and regulations setting forth procedures for the purpose of making the Assessments provided herein and for the billing and collection thereof, provided that such procedures are not inconsistent with the provisions hereof. The failure of the Association to send a bill to an Owner shall not relieve any Owner of his liability for any Assessment or charge under this Declaration, but the Assessment Lien therefor shall not be foreclosed or otherwise enforced until the Owner has been given not less than 30 days' written notice prior to such foreclosure or enforcement, at the address of the Owner on the records of the Association, that the Assessment or any installment thereof is or will be due and of the amount owing. Such notice may be given at any time prior to or after delinquency of such payment. The Association shall be under no duty to refund any payments received by it even though the ownership of a Membership changes during an assessment period. Successor Owners of Lots shall be given credit for prepayments, on a prorated basis, made by prior Owners. Section 7.16 Enforcement of Lien. The Assessment Lien may be foreclosed by the Association in any manner provided or permitted for the foreclosure of mortgages in the State of Hawaii. All of the provisions of this Article VII relating to the enforcement of the Assessment Lien provided for herein (including without limitation the provisions of this Section 7.16) shall apply with equal force in each other instance provided for in this Declaration, the Association Rules or Design, Guidelines wherein it is stated that payment of a particular Assessment, charge or other sum shall be: secured by the Assessment Lien. Nothing herein shall be construed as requiring that the Association take any action required hereunder in any particular instance, and the failure of the Association to take such action at any time shall not constitute a waiver of the right to take such action at a later time or in a different instance. Section 7.17 Pledge of Assessment Rights as Security. The Association shall have the power to pledge the right to exercise its assessment powers and rights provided for in this Declaration as security; provided, however, that any such pledge occurring after the Final Transition Date shall require the affirmative vote of the Members representing a majority of the Class "A" votes. Article VIII Maintenance Section 8.1 Common Areas. The Association, or its duly delegated representatives, shall maintain, manage and keep in good repair all Common Areas, such maintenance to be funded as provided in this Declaration. The Common Areas shall include, but need not be limited to: the Association Land, including any landscaping and other flora, walkways, riding or jogging paths, parking areas and all other Improvements and amenities located upon and within the Association Land; (b) the medians and rights-of-way along public rights-of-way, if any, within or adjacent to the Property, including any trees and other landscaping located thereon, to the extent the Board determines that such maintenance is necessary or desirable to maintain the Community-Wide Standard; 99-0715 Page l7 26015U\158478.5 (c) the Private Roads and landscaping adjacent to or within medial strips of the Private Roads; (d) the Recreational Facilities, as provided in Article XVII; (e) all perimeter walls and entry monumentation for the Project, constructed by or on behalf of Developer or the Association; (f) the Access and Utility Easement Areas, including any landscaping therein to the extent the Board determines that such maintenance is necessary or desirable to maintain the Community-Wide Standard; (g) any property which becomes the responsibility of the Association by agreement with the County or the State of Hawaii; and (h) such additional property as may be designated or described as part of the Common Areas in this Declaration or any contract or agreement for maintenance thereof by the Association. The Common Areas shall not be reduced by amendment of this Declaration or any other means without the prior written approval of Developer. Dedication of any portion of the Property to the County or the State of Hawaii or other governmental or quasi-governmental agency shall not relieve the Association of its maintenance obligations. Except as otherwise provided in this Declaration, all costs associated with maintenance, management, operation, repair and replacement of the Common Areas shall be Common Expenses, subject to any right of the Association to seek reimbursement from certain Members or other Persons responsible for certain portions of the Common Areas, pursuant to this Declaration or other agreements. To promote uniformity and harmony of appearance throughout the Project, the Board may cause the Association to contract to provide maintenance services to Owners of Lots having such responsibilities in exchange for the payment of such fees as the Association and Owner may agree upon. Such fees shall be charged to the Owner as a Benefitted Assessment. In providing for the maintenance, management and repair of the Common Areas pursuant to this Article VIII he Association may, subject to any applicable provisions relating to Capital Improvement Assessments and any other provisions of this Declaration, in the discretion of the Board: (i) Construct, reconstruct, repair, replace or refinish any Improvement or portion thereof upon the Common Areas; (ii) Replace injured and diseased trees and other vegetation in the Common Areas, and plant trees, shrubs and ground cover to the extent that the Board deems necessary for the conservation of water and soil and for aesthetic purposes; 99-0715 26015\3\1 58478.5 Page 24 (iii) Place and maintain upon the Common Areas such signs as the Board may deem appropriate for the proper identification, use and regulation thereof, and (iv) Do all such other and further acts which the Board deems necessary or appropriate to preserve and protect the Common Areas and the beauty thereof, in accordance with the Community-Wide Standard and the general purpose of this Declaration. The Board shall be the sole judge as to the appropriate maintenance of the Common Areas. Any cooperative action necessary or appropriate to the proper maintenance and upkeep of such properties shall be taken by the Board or by its duly delegated representatives. The Board may cause the Association to contract with others for the performance of the maintenance and other obligations of the maintenance and other obligations of the Association under this Section 8.1. Section 8.2 Owner's Responsibility. Except as otherwise specifically provided in this Declaration, the Master Declaration, or any agreement with the Association, the performance and cost of all maintenance and repair of each Lot and all structures, parking areas, landscaping and other improvements located on or within such Lot shall be the sole responsibility of the Owner thereof. Section 8.3 Standard of Performance. The Property shall be maintained, managed and = repaired by the Association and the Owners, as applicable, under this Declaration in a manner consistent with the Community-Wide Standard and all applicable covenants, conditions and restrictions. The obligation to maintain and manage, as imposed in this Declaration, shall include the obligation to maintain appropriate landscaping alive and in attractive and trimmed condition, and to implement and maintain erosion-sedimentation control measures. Section 8.4 Assessment of Certain Costs of Maintenance and Repair of the Common Areas. In the event that the need for maintenance or repair of the Common Areas is caused through the willful or negligent act of any Owner or Occupant or their family, guests, or invitees, the cost of such maintenance or repairs shall be a Special Assessment against the Owner and its Lot, secured by the Assessment Lien. Section 8.5 Improper Maintenance and Use of Lots. In the event any portion of any Lot is so maintained as to present a public or private nuisance or an unreasonable condition (as determined by the Board) with respect to other Owners or Occupants, or as to substantially detract from the appearance or quality of the surrounding Lots or other areas of the Property or the Project which are substantially affected thereby or related thereto, or in the event any portion of a Lot is being used in a manner which v1DTates the Design Documents, or in the event the Owner of any Lot or portion thereof is failing to perform any of its obligations under the Design Documents (including, but not limited to, the maintenance of Lots consistent with the Community-Wide Standard), the Board may by resolution make a finding to such effect, specifying the particular condition or conditions which exist, and pursuant thereto give notice to the offending Owner that unless corrective action is taken within 10 days, the Board may cause such action to be taken at the Owner's cost. If at the expiration of said 10-day period the requisite corrective action has not been taken, the Board shall be authorized and empowered to cause such action to be taken and the cost thereof shall be a Special Assessment against the offending Owner and the Owner's Lot, secured by the Assessment Lien. 99-0715 26015\3\158478.5 Page 25 Section 8.6 Maintenance of Unimproved Lots. To maintain the appearance of the Property in accordance with the Community-Wide Standard, the Association may, at the discretion and by resolution of the Board, provide temporary maintenance of the landscaping and flora of any or all unimproved Lots. Such maintenance may include or be limited to the cutting or trimming of vegetation on an unimproved Lot and such other actions as the Board may deem necessary or appropriate from time to time. The Board shall have no obligation to provide such temporary maintenance of any unimproved Lot, and by performing such maintenance from time to time the Board shall not be deemed to having any continuing obligation to do so. The costs of maintenance by the Board of any unimproved Lot pursuant to this Section 8.6 may, at the discretion of the Board, be either (i) a Common Expense and included in the General Assessment, or (ii) a Benefitted Expense to be charged and assessed as a Benefitted Assessment against the Owner of the affected Lot and such Lot, secured by the Assessment Lien. Section 8.7 Rights of Common Area Access and Maintenance. The Board, and its duly authorized employees, agents and contractors, shall have and are hereby reserved and granted the right and a non-exclusive license to enter upon the Property, including any Lot, as reasonably necessary for the purpose of satisfying the maintenance rights or obligations of the Association pursuant to this Article Vlll. Section 8.8 Dedication of Common Areas. Dedication of any portion of the Common Areas, including the Private Roads, to the County or to the State of Hawaii or other governmental or quasi-governmental agency shall be in accordance with all ordinances, rules and regulations then in effect regarding dedication of such property. Developer does not represent that any portion of the Common Areas, including without limitation the Private Roads and associated street lighting, if any, is or will be constructed or maintained to current dedicable standards (and Developer expressly discloses that portions of the Common Areas, including the Private Roads and associated street lighting, if any, may not be constructed or maintained to current dedicable standards). In the event the Association shall pursue dedication of any portion of the Common Areas, it shall be the responsibility of the Association, at its expense, to improve to dedicable standards all such property to be dedicated. Dedication of any portion of the Common Areas shall not relieve the Association of its maintenance obligations pursuant to this Declaration, except to the extent agreed by the terms of the dedication. Article IX Security The Association, or its duly delegated representatives, may, but shall have no obligation to, operate a s6cun "_Y`stem on the Property and the Project, as follows: Section 9.1 General Security. The security system may include guard gates and other security points, both manned and unmanned, at entries to various portions of the Property and the Project; patrol vehicles, patrolmen and security supervisors; computer and/or other monitoring equipment; television monitoring devices; burglar and fire alarm devices installed in buildings located on the Common Areas and Association Land; communications equipment; direct line phones; and such other security protection devices as may be deemed appropriate by Developer or the Association. The cost of any such security system shall be a Common Expense. 99-0)15 Page 26015\3\158478.5 3fi Section 9.2 Security for Individual Lots. The Association may require that any Owner wishing security service (including without limitation patrol service and fire and burglar alarm protection) for such Owner's particular Lot, as distinguished from general security service under Section 9. 1, obtain the service from a Person (which may be the Association) selected by the Association to provide such service to all Owners in the Property wishing such service. The Association, however, may not require any Owner to have such service for his particular Lot. The cost of any such service would not be a Common Expense or included in the General Assessment, but, if provided by or through the Association, would be a Benefitted Assessment against the Owner requesting the service and the Owner's Lot for which the service is provided. The cost of any such service shall be reasonably competitive with the charges for similar services rendered by unaffiliated companies providing such services on a contract basis to other communities and customers in the area. Section 9.3 Right of Entry. Representatives and agents of the Association, including security patrolmen, shall have the right to enter upon all Lots and Common Areas when responding to alarms or when otherwise reasonably deemed necessary for the protection of Persons or property, and neither the Association, nor any representative or agent thereof, shall have any liability to any Person when acting in good faith in effecting such entry. The Board shall use a reasonably high standard of care in providing for the operation of any security system for Lots to provide reasonable protection to Owners and Occupants; provided, however, the Association shall not have any liability. to any Owner, Occupant or other Person for any damages, injury or theft to person or property not- prevented by a security system or for any failures in a security system. The Board shall be the sole judge as to the appropriate level and type of security provided to the various portions of the Property. The Board may cause the Association to contract with others for the performance of any or all of the security described in this Article IX. Neither Developer nor the Association shall in any way be considered insurers or guarantors of security within the Property, and neither Developer nor the Association shall be held liable for any loss or damage by reason of failure to provide adequate security or ineffectiveness of security measures undertaken. Each Owner and Occupant acknowledges and understands that Developer, the Association and the Board are not insurers and that each Owner and Occupant assumes all risks for loss or damage to Persons and Lots and to the contents of Improvements located thereon and further acknowledges that Developer, the Association and the Board have made no representations or warranties nor has any Owner or Occupant relied upon any representations or warranties, expressed or implied, including any warranty of merchantability or fitness for any particular purpose, relative to any security measures undertaken within the Property. Article X Insurance Section 10.1 Authority to Purchase. The Board shall have the power and authority to and shall purchase with Association funds such public liability, fire and casualty, officers' and directors' liability and indemnity, workmen's compensation and other insurance and such fidelity bonds as the Board shall deem necessary or appropriate from time to time. Such policies shall be on such terms and conditions as the Board shall direct, subject to this Article X. All such policies and claims thereunder shall be administered by the Board. To the extent reasonably available, the Association shall maintain at least $10,000,000 (combined limits) of insurance against liability incurred as a result of death or 99-0715 26015\3\158478.5 Page 27 injury to persons or damage to property on any portion of the Common Areas. Fire and casualty insurance shall be in an amount as near as possible to the full replacement value of all improvements located on the Association Land, and shall be written with extended coverage and an inflation guard endorsement, if reasonably available. Section 10.2 Non-Liability of Association, Board and Officers. Neither the Association nor any Board member nor officer of the Association nor Developer shall be liable to any Owner, Mortgagee or other Person if any risks or hazards are not covered by insurance or if the amount of insurance is not adequate, and it shall be the responsibility of each Owner to ascertain the coverage and protection afforded by the Association's insurance and to procure and pay for such additional insurance coverage and protection as the Owner may desire. Section 10.3 Premiums. Premiums for insurance policies purchased by the Association shall be paid by the Association as a Common Expense, except that the amount of increase over any annual or other premium occasioned by the use, misuse, occupancy or abandonment of a Lot or its appurtenances, or of the Common Areas, by an Owner or Occupant or the agent, employee or invitee of either, shall be assessed against that particular Owner as a Special Assessment. Section 10.4 Insurance Claims. The Association, through such persons as the Board: may delegate, is hereby irrevocably appointed and authorized, subject to the provisions contained herein, to adjust all claims arising under insurance policies purchased by the Association and to execute and deliver releases upon the payment of claims, and to do all other acts reasonably necessary to accomplish any of the foregoing. The Board, at its discretion, may appoint an authorized representative, or enter into an insurance trust agreement wherein the trustee shall have authority to negotiate losses under any policy purchased by the Association. Section 10.5 Benefit. Except as otherwise provided herein, all insurance policies obtained by the Board shall be for the benefit of, and any proceeds of insurance received by the Association or any insurance trustee shall be held or disposed of for, the Association and the Owners, as their interests may appear. Section 10.6 Provisions Common to Association Insurance. Any insurance coverage obtained by the Association pursuant to this Article X shall be subject to the following provisions and limitations: (a) The named insured under any such policies shall be the Association, or its authorized repr-6 tative, with Developer named as an additional insured. (b) In no event shall the insurance coverage obtained and maintained by the Association be brought into contribution with insurance purchased by the Owners, Occupants, or their Mortgagees. (c) The policies shall provide that coverage shall not be prejudiced by (i) any act or neglect of the owners when such act or neglect is not within the control of the Association, or 99-0715 26015\'\158478.5 Page 2g (ii) failure of the Association to comply with any warranty or condition with regard to any portion of the Project over which the Association has no control. (d) The policies shall provide that coverage may not be canceled or substantially modified (including cancellation for non-payment of premium) without at least 30 days' prior written notice to any and all first Mortgagees and insureds named therein. (e) All policies shall be written with a company licensed to do business in Hawaii and holding a rating of A or better in the financial category as established by A.M. Best Company, Inc., if reasonably available, or, it not available, the most nearly equivalent rating. (f) Insurance policies shall include the following provisions, if reasonably available: (i) A waiver of subrogation by the insurer as to any and all claims against the Association and any Owner and their respective agents, employees or tenants, and of any defenses based upon co-insurance or upon invalidity arising from the ads of the insured; (ii) Notwithstanding any provisions which give the carrier the right:: to elect to restore damage in lieu of making a cash settlement, such option shall not be exercisable without the prior written approval of the Board or when in conflict with the provisions of any insurance trust agreement to which the Association may be a party or any requirement of law; and (iii) No policy may be canceled, invalidated, or suspended on account of the conduct of any member of the Board, or any officer or employee of the Association or its duly authorized manager without prior demand in writing delivered to the Association to cure the defect and the allowance of a reasonable time thereafter within which the defect may be cured by the Association, its manager, any Owner or Mortgagee. Section 10.7 Annual Insurance Review. The Board shall review the insurance carried by or on behalf of the Association, at least annually, for the purpose of determining the amount of casualty insurance required. If economically feasible, the Board shall obtain a current appraisal of the full replacement value of the Improvements on the Association Land, without deduction for depreciation, from a qualified independent insurance appraiser, prior to each such annual review. Section 10.8 Individual Insurance. By virtue of taking title to a Lot, each Owner covenants and agreemyitfi all other Owners and with Developer and the Association that such Owner shall carry or provide for blanket all-risk casualty insurance on such Owner's Lot and Improvements thereon on such terms and with such limits as a reasonably prudent person would obtain. Each Owner (other than Developer) further covenants and agrees that in the event of a partial loss or damage and destruction resulting in less than total destruction of Improvements on such Owner's Lot, the Owner shall proceed promptly to repair or to reconstruct the damaged Improvements in a manner consistent with the original construction, or in such other manner as may be approved pursuant to Article XIV. In the event that an Improvement is totally destroyed and the Owner determines not to rebuild or to reconstruct, the Owner shall clear the affected Lot of all debris and return the land to substantially the 99-0715 26015\3\158478.5 Page 29 natural condition in which it existed prior to the beginning of construction of the Improvement thereon. The Board may impose more stringent requirements regarding the standards for rebuilding or reconstructing structures on each Lot and the standard for returning the Lot to its natural state in the event the Owner decides not to rebuild or reconstruct. Article XI Damage and Destruction of Common Area c Section 11.1 Duty of Association to Restore and Repair. In the event of partial or total destruction of the Association Land, or any Improvements thereon, the Association shall restore and repair the same, subject and pursuant to this Article XI. The proceeds of any casualty insurance maintained by the Association may be used to the extent available for such purpose, subject to the prior rights of Mortgagees whose interest may be protected by such policies. In the event that the amount available from the proceeds of any insurance policies for such restoration and repair, together with any uncommitted or unreserved capital of the Association, shall be less than the estimated cost of restoration and repair, the Association may, with the vote or written assent of the Members representing at least 65 percent of the total votes of the Class "A" Membership, and the Class "B" Member, if such exists, levy a Reconstruction Assessment against each Owner, and cause the damaged or destroyed Common Areas to be repaired or restored. Reconstruction Assessments shall be levied and charged= on the same basis as provided for General Assessments under Section 7.3. Section 11.2 Decision Not to Restore or Repair. If the Members, upon the vote or written assent of the Members representing at least 65 percent of the total votes of the Class "A" Membership, and the Class "B" Member, if such exists, shall decide within 60 days after'the casualty not to restore or repair the damaged or destroyed Improvements on the Common Areas, or if such repair or restoration is disapproved pursuant to Section 1 1.1 above, the portion of the Common Areas so damaged or destroyed shall be cleared and landscaped for such use as determined by the Board. Section 11.3 Excess Insurance Proceeds. In the event any excess insurance proceeds remain after any repair or reconstruction by the Association pursuant to this Article XI, the Board, in its sole discretion, may retain such sums in the general funds of the Association or may distribute all or a portion of such excess to the Owners in the ratio that they would pay a Reconstruction Assessment hereunder, subject to the prior rights of Mortgagees whose interest may be protected by the insurance policies carried by the Association. The rights of an Owner or the Mortgagee of a Lot as to such distribution shall be governed by the provisions of the Mortgage encumbering such Lot. Sect oTTr:-'-11.4 Use of Reconstruction Assessments. All amounts collected as Reconstruction Assessments shall only be used for the purposes set forth in this Article XI and shall be deposited by the Association in a separate bank account for such purposes. Such funds shall not be commingled with any other funds of the Association and shall be deemed a contribution to the capital account of the Association by the Owners. Any Reconstruction Assessment shall be secured by the Assessment Lien. Section 11.5 Insurance Proceeds Trust. Upon receipt by the Association of any insurance proceeds, the Board may cause the insurance proceeds to be paid directly to a bank, savings and loan association, or trust company located in the State of Hawaii, designated by the Board as 9A 0715 26015\7\158478.5 Page 30 trustee (the "Insurance Trustee"). Such funds shall be received, held and administered by the Insurance Trustee subject to a trust agreement consistent with the provisions of this Declaration and which shall be entered into between the Insurance Trustee and the Board. Disbursements to contractors performing any repair or reconstruction upon the Property shall be made periodically as the work progresses in a manner consistent with procedures then followed by prudent lending institutions in the State of Hawaii. Article XII Eminent Domain Section 12.1 Definition of Taking. The term "Taking" shall mean condemnation by eminent domain or sale under threat of condemnation of all or any portion of the Association Land. Section 12.2 Representation in Condemnation Proceedings. In the event of a threatened Taking, the Owners hereby appoint the Association through such persons as the Board may delegate to represent all of the Owners in connection therewith. The Association shall act in its sole discretion with respect to any awards being made in connection with the Taking and shall be entitled to make a voluntary sale to the condemnor in lieu of engaging in a condemnation action. Section 12.3 Award for Association Land. Any awards received by the Association on account of the Taking shall be paid to the Association. If the Taking involves a portion of Association Land on which Improvements have been constructed, then, unless within 60 days the Members representing at least 65 percent of the total votes of the Class "A" Membership, and the Class "B" Member, if such exists, shall, by vote or written assent, decide otherwise, the Association shall restore or replace such Improvements so taken on remaining land included in the Association Land to the extent lands are available therefor, in accordance with plans approved by the Board. If such Improvements are to be restored or replaced, the provisions of Article XI regarding the disbursement of funds relating to casualty damage or destruction shall apply. The Association may, in its sole discretion, retain any award funds in excess of those required to restore or replace Improvements in the general funds of the Association or distribute all or any portion thereof to the Owners in the ratio they would pay a Reconstruction Assessment hereunder, or as their interests otherwise may appear. The rights of an Owner and the Mortgagee of his Lot as to any distribution shall be governed by the provisions of the Mortgage encumbering such Lot. Article XIII Rights of Morteagees SectttAy-- - -13.1 General Provisions. Notwithstanding any other provisions of this Declaration, the ArticTes, Bylaws, Association Rules or Design Guidelines, the following provisions shall apply to and benefit each holder of a First Mortgage (and, in the case of Sections 13.4 and 13.6, to the holder of any Mortgage) upon a Lot. Section 13.2 Subordination of Lien. The Assessment Lien against a Lot shall be subordinate to the lien of a prior Recorded First Mortgage on the Lot, except to the extent the Assessment Lien secures the amount of any unpaid Assessments (together with any interest, costs, reasonable attorneys' fees and any late charges related thereto) which accrue from and after the date 990715 26015\3\158478.5 Page 31 on which a First Mortgagee comes into possession of or acquires title to the Lot, whichever occurs first. If the Assessment Lien for unpaid Assessments, which become payable after Recordation of the First Mortgage, but prior to the date the First Mortgagee comes into possession of or acquires title to the Lot, is not extinguished, to the extent it secures said unpaid Assessments, by the process by which such First Mortgagee acquired title to the Lot, neither such First Mortgagee nor a third-party purchaser shall be liable for the unpaid Assessments, and, upon written request to the Association by such First Mortgagee or purchaser, the Assessment Lien shall be released in writing by the Association to the extent it secures the unpaid Assessments. Nevertheless, in the event the Owner against whom the original Assessment was made is the purchaser or redemptioner, the lien shall continue in effect and may be enforced by the Association, or by the Board, for the respective Lot's Assessment that was due prior to the final conclusion of any such foreclosure or equivalent proceedings. Further, any such unpaid Assessment shall continue to exist as the personal obligation of the defaulting Owner of the respective Lot to the Association, and the Board may use reasonable efforts to collect the same from said Owner even after he is no longer the Owner of the Lot. Any unpaid Assessments which are extinguished pursuant to this Section 13.2 may also be reallocated by the Association among all Owners as part of the Common Expenses. Except as above provided (and except for liens for taxes and other public charges which by applicable law are made prior and superior), the Assessment Lien shall be prior and superior to any and all charges, liens or encumbrances which hereafter in any manner may arise or be imposed on any Lot. Section 13.3 No Personal Liability. A First Mortgagee shall not in any case or manner be personally liable for the payment of any Assessment or charge, nor the observance or performance of any covenant, condition, restriction, servitude or reservation in this Declaration or in the Association Rules, or any provision of the Articles or Bylaws, or any management agreement, except for those matters which are enforceable by injunctive or other equitable actions, not requiring the payment of money, except as specifically provided in this Article XIII. Section 13.4 Enforcement After Foreclosure Sale. An action to abate the breach of any of the covenants, conditions, restrictions, servitudes and reservations in this Declaration may be brought against the purchasers who have acquired title through foreclosure of a Mortgage and the subsequent foreclosure or trustee's sale (or through any equivalent proceedings), and the successors in interest to said purchasers, even though the breach existed prior to the time said purchaser acquired an interest in such Lot. Section 13.5 Exercise of Owner's Rights. During the pendency of any proceedings to foreclose a First Mortgage (including any period of redemption), the Mortgagee, or a receiver appointed in any such action, may, but need not, exercise any or all of the rights and privileges of the Owner in default including, b-Aot limited to, the right to vote as a Member of the Association in the place and stead of the defaulting Owner. Section 13.6 Subject to Declaration. At such time as a Mortgagee shall come into possession of or become record Owner of a Lot, the Mortgagee shall be subject to all of the terms and conditions of this Declaration including, but not limited to, the obligation to pay all Assessments and charges accruing thereafter, in the same manner as any other Owner. 99-0715 Page 32 2601 5\3\1 58478.5 Section 13.7 Notices of Action. A First Mortgagee who provides written request to the Association (such request to state the name and address of such First Mortgagee and the address of the affected Lot) will be entitled to timely written notice of: (a) any proposed termination of the Association; (b) any condemnation loss or any casualty loss which affects a material portion of the Property or which affects the Lot subject to the Mortgage held by such First Mortgagee; (c) any delinquency in the payment of Assessments or charges owed by an Owner of the Lot subject to the mortgage held by such First Mortgagee, where such delinquency has continued for a period of 60 days; (d) any lapse, cancellation, or material modification of any insurance policy or fidelity bond maintained by the Association; and (e) any proposed action which would require the consent of a First Mortgagee, pursuant to Section 13.8 or Article XXV. Section 13.8 Other Provisions for First Mortgagees. To the extent possible under Hawaii law, any restoration or repair of the Common Areas after a partial condemnation or damage due to an insurable hazard shall be substantially in accordance with this Declaration and the original plans and specifications, unless the approval is obtained from the Mortgagees holding First Mortgages on at least 51 % of the Lots upon which there are First Mortgages. Section 13.9 Applicability of Article X111. Nothing contained in this Article Xill shall be construed to reduce the percentage vote that must otherwise be obtained under this Declaration, the Articles or Bylaws or Hawaii law for any of the acts set out in this Article XIII. Section 13.10 Failure of Mortgagee to Respond. Any Mortgagee who receives a written request from the Board to respond or consent to any action shall be deemed to have approved such action if the Board does not receive a written response from the Mortgagee within 20 days of the date of the Board's request, provided such request is delivered to the Mortgagee by certified or registered mail, return receipt requested. Article XIV 'A'rchitectural and Landscape Control: Design Guidelines Section 14.1 Architectural Control. Subject to such exceptions as may be set forth in the Design Documents, no Lot Owner shall construct, reconstruct, refinish, alter or maintain any Improvement on the Owner's Lot, or install any utility line (wire or conduit) thereon, or make any Excavation, or cut or remove any trees from such Lot, or do any act that would affect the drainage thereof, until the Lot Owner first obtains the approval thereof from the Community Design Committee and otherwise complies with the Design Documents. All proposals and plans for such work shall be prepared by an architect registered and licensed in the State of Hawaii and then submitted to the 99-0715 26015\3\I 58478.5 Page 33 Community Design Committee for written approval as set forth in the Design Documents. The Owner or other party seeking architectural approval from the Community Design Committee shall bear all costs, including reasonable architects, engineers, attorneys and overhead charges, incurred in connection with reviewing and approving plans and specifications. Section 14.2 Design Guidelines. The Design Guidelines set forth in this Article XIV shall supplement the Master Design Guidelines as to the Property, and except as permitted under the Master Declaration or the Master Design Guidelines, shall not be inconsistent with the Master Design Guidelines; provided, however, that the Design Guidelines may be more stringent or restrictive than the Master Design Guidelines. Each Owner acknowledges that the Design Documents applicable to the Project include both the Master Design Guidelines and the Design Guidelines set forth in this Article XIV. The Board shall make the Design Documents available to Owners, builders, and developers who seek to engage in development of or construction upon all or any portion of the Property, and such Owners, builders and developers shall conduct their operations strictly in accordance therewith. Section 14.3 Individual Lot Plot Plans. Developer shall establish a "Plot Plan" for each Lot, which Plot Plan shall be part of these Design Guidelines and the Design Documents, and, until the Final Transition Date, may not be revised without Developer's approval. A copy of each Plot Plan: shall be maintained at the principal offices of the Association and the CDC, and shall be available for review and inspection by each Owner and other Persons reasonably entitled thereto, upon request. Each Plot Plan may establish, indicate or designate some or all of the following items applicable or relevant to construction on or relating to the Lot: (i) building envelope and building setbacks; (ii) easement areas; (iii) 1980 shoreline certification and related shoreline setback; (iv) Archaeological Features and related setbacks; (v) the Coastal Trail and related setbacks; (vi) Access and Utility Easement Areas; (vii) existing pond area(s); (viii) grading and fill limitations or requirements; (ix) approximate pad elevations; (x) building height limitations; (xi) building coverage limitations; (xii) planting and/or natural lava areas; (xiii) approximate location of utilities and their connection points; and (xiv) applicable use designations and limitations. Without limiting any other provision of the Design Documents, including these Design Guidelines, each Lot, and development thereof, shall be subject to all items shown or referred to on its respective Plot Plan. All grades, elevations, contours, boundaries, utility locations, shoreline setbacks and other items as shown or referred to on the Plot Plans are approximate, and subject to verification by the Owner of the affected Lot. Developer, the Association and/or the CDC make no representations or assurances, and shall have no liability, with respect to the accuracy of the information and other items shown or referred to orrthe Plot Plans. Section 14.4 Building Envelope and Setbacks. 14.4.1 All Buildings, including Dwelling Units and any accessory structures, terraces, parking areas, recreational facilities and other such improvements, shall be built within the applicable building envelope and outside of any easement areas, Access and Utility Easement Area and building setbacks, as designated on the Plot Plan, except only to the extent a building envelope modification or variance is approved in writing by the Board and the CDC. Any such approval shall 99-0716 Page 26015\3\158478.5 ]s be based upon a conclusion by the Board and the CDC that such improvements will not have a negative effect upon adjacent Lots or the Project as a whole. 14.4.2 The placement of all Buildings and other Improvements within the building envelope shall require the approval of the CDC, and the CDC may impose further restrictions on placement within the building envelope. 14.4.3 The building envelope and setback limitations shall constitute view and safety easements which shall be enforceable by the Board and/or by the Owner whose view is impeded by a violation of these easements. Neither Developer nor the Board guarantees any unobstructed views, and neither shall have the obligation to enforce any building envelope or setback limitations. 14.4.4 Notwithstanding compliance with building envelope and setback limitations, the CDC shall have the power and authority (but shall not be obligated) to deny approval of any Building or other Improvement which materially impairs the views from another Lot. 14.4.5 Except as expressly indicated on the Plot Plan, no Buildings or other improvements shall be placed, built, installed or maintained within or otherwise affecting any Archaeological Feature setback area, Coastal Trail setback area, and/or open areas, as designated or' indicated on the Plot Plans. Exceptions expressly indicated on the Plot Plans are subject to all applicable permits and approvals, including CDC approval in accordance with the Design Documents. 14.4.6 Existing pond area(s), as shown on the Plot Plan, may be subject to wetlands status and other development limitations. Any development activity by the Owner affecting such area(s) shall be subject to the approval of appropriate governmental authorities, as well as CDC approval in accordance with the Design Documents. Section 14.5 Grading and Lot Drainage. 14.5.1 Each Owner acquiring a Lot from Developer accepts the condition of the Lot in an "as is" condition. There are no representations made by Developer or its agents that any prior fill material on or affecting the Lot has been compacted to achieve any engineered standards. All subsequent grading work performed by the Owner shall be in strict compliance with plans as approved by the CDC and all appropriate governmental authorities. 14.&2 It is the responsibility of each Owner to contain all of the drainage from storm run-off within src, owner's Lot. Section 14.6 Building Coverage. Building coverage shall be defined as the portion of the land area of a Lot covered by Buildings. Driveways, sidewalks, walls, fences, pools, water features and play areas are not considered Buildings for purposes of this calculation. The Master Design Guidelines provide that the building coverage for a Lot shall not exceed 35% of the total land area of the Lot, or such smaller area as may be restricted by applicable law (including zoning ordinances and building codes). For certain Lots, due to their size or configuration, the allowable building coverage may be 99-0716 26015\3\158478.5 Page 35 greater, to the extent designated on the Plot Plan for such Lot and approved by the CDC (but subject to applicable law). Section 14.7 Architectural Character. The architectural style of the Project is intended to draw its inspiration and appearance from the work of C.W. Dickey, Hart Wood, Bertram Goodhue and other creative architects who worked in Hawaii early in the 20th century. The desired architectural character should be one of simple elegance, achieved through the use of natural materials, earth tone colors and classic ornamentation which is derived from traditional and historic Hawaiian design themes and motifs. The floor plans should be open and airy to maximize the opportunity of living near the beach in Hawaii. All Buildings shall have pitched roofs with deep overhangs to shade the walls and should be designed with generously sized window openings to take advantage of the cool ocean and mountain breezes. Section 14.8 Guest Houses. Subject to CDC approval and applicable law (including zoning ordinances and building codes), one guest house, for the specific use as a temporary residence for a guest or employee of the Lot Owner, may be permitted, either attached or detached to the principal house. The architectural style and materials of the guest house shall complement the principal house and other Buildings on the Lot. Section 14.9 Existing Pad and Finished Floor Elevations. The Plot Plan for each Lot shall : indicate an approximate pad elevation, based upon height from sea level (with a tolerance of two feet). Finished floor elevations shall be limited to such heights above sea level as designated on the Plot Plan (with a tolerance of two feet). Changing the finished floor elevation, massive cutting, filling and high retaining walls shall not be permitted (except in designated areas shown on the Plot Plan), except to the extent specifically approved by the CDC. Section 14.10 Building Height. The Plot Plan for each Lot shall indicate building height limitations applicable to the Lot. Building height limitations are based upon existing pad elevations. No portion of the main roof of any Building shall exceed the building height limitations, other than roof chimneys (not exceeding four feet above the highest point of the roof), except to the extent specifically approved by the CDC. Except as specifically designated on the Plot Plan, all Dwelling Units shall be one story in height with a maximum building height of twenty feet. For Lots designated as permitting two-story structures, the maximum building height shall be twenty-eight feet. For two-story structures, the second floor must be stepped back from the first floor on both the front and rear I'ot~'rRe elevations. The second floor roofed area shall not exceed 60 percent of the first floor living area, including garages and roofed lanais. No portion of the second floor roofed area shall overhang the first floor. Interior loft spaces are allowed within one-story structures, subject to the applicable building height limitations. Section 14.11 Minimum Dwelling Size. Each Dwelling Unit constructed upon a Lot shall have a minimum enclosed living area of two thousand five hundred square feet under roof, excluding garage, storage areas, lanai areas and guest house or servants quarters. 99-0716 26015\3\158478.5 Page 36 Section 14.12 Garage, Guest Parking. 14.12.1 Each Dwelling Unit shall include a garage providing storage for at least two cars and containing not less than five hundred square feet of parking area under roof, which may be attached to or detached from the Dwelling Unit, as approved by the CDC. All garages shall be fully enclosed with garage doors. Every garage, whether attached or detached, shall contain not less than an additional one hundred fifty square feet of covered and enclosed floor area for storage facilities. Carports and similar structures shall not be permitted. 14.12.2 Two additional paved guest parking spaces shall be provided on each Lot, which may be located on the driveway. Section 14.13 Roof Materials, Color, Pitch and Eaves. 14.13.1 All roofs shall be as approved by the CDC. Roof materials shall be limited to those referenced in the Master Design Guidelines. Alternate materials, such as clay or concrete tile, copper or other roofing materials of equivalent texture, quality or character, are permitted only to the extent specifically approved by the CDC. 14.13.2 Roof colors shall be earth tones or muted colors, with green, gray, muted blue, black or brown preferred. Terra cotta colored roof materials are not allowed. All roof colors are subject to CDC approval. 14.13.3 Roofs shall be designed and pitched with at least 70% of the total roof area having a pitch/slope equal or greater then 4:12. Flat roofs are not permitted except to the extent specifically approved by the CDC. 14.13.4 Roof overhangs shall be a minimum of three feet wide, not including gutters, as measured horizontally. Section 14.14 Exterior Materials and Color. 14.14.1 Exterior finish materials shall be limited to those referenced in the Master Design Guidelines, as well as either stucco, plaster, stone, cast concrete, board and batten, or shiplap siding, to the extent approved by the CDC. All wood siding shall be paint or stain grade quality or better. 14.14.2 No vinyl, pre-finished metal siding, plain surfaced or grooved plywood panels, composite or pressed/composite wood siding shall be permitted. 14.14.3 All exterior wall materials must be continued down to finish grade, so that unfinished foundation walls will not be exposed. 14.14.4 Exterior colors shall be generally subdued with muted pastels, natural tones and off-white preferred. All colors are subject to CDC approval. 99-0716 Page 77 2601513\158478.5 14.14.5 Highly reflective finishes are not permitted as exterior surfaces. Section 14.15 Driveways. 14.15.1 Driveways aprons and driveways shall be paved. All pavement material is subject to CDC approval. Recommended materials are asphaltic concrete, textured concrete, concrete, concrete pavers, stone or basaltic pavers. Flagstone driveway surfaces with grass edging/grouting is also acceptable, subject to CDC approval. 14.15.2 Driveways with a slope of twelve percent or more shall be paved with concrete. 14.15.3 All driveways shall connect into the Access and Utility Easement Area, if any, for access to the adjacent roadway, or be otherwise located as indicated on the applicable Plot Plan. Section 14.16 Fences, Walls, Hedges and Enclosures. 14.16.1 Fences, walls, hedges and enclosures, above three feet in height, are not= permitted within ten feet from the front and rear boundary lines, except to the extent specifically approved by the CDC. 14.16.3 Exposed faces of retaining walls shall not exceed six feet in height including the non-retaining portions of the walls. 14.16.3 Fences, walls and hedges located along side boundary lines shall not exceed six feet in height from the finished grade. 14.16.4 Retaining, walls and foundations of more than three feet in height or where placed upon embankments of filled areas, shall be designed by a civil or structural engineer duly registered as such in the State of Hawaii. 14.16.5 All walls shall be constructed of lava rock, concrete or concrete block. All exposed surfaces shall be finished with lava rock veneer, or stucco. Rock walls shall be constructed dry or with no mortar showing. -13t.1 6.6 Wood or metal fences are permitted where appropriate, subject to CDC approval. Fences shall be of an attractive design and have a high quality finish. Fences shall be designed and finished to be equally attractive from both sides. 14.16.7 Property line fences shall be developed in common with adjacent Lot Owners to eliminate double fencing, wherever possible. Section 14.17 Utility Service. No lines, wires, or other services for the communication or transmission of electric current or power or electromagnetic impulses, including telephone, 99-0716 26015\3\158478.5 Page 38 television, and radio signals, shall be erected, placed or maintained anywhere in or upon any Lot unless the same shall be contained in conduits or cables installed and maintained underground or concealed in, under or on Buildings or other structures approved by the CDC. Meters and service panels shall be screened from view. No provision hereof shall be deemed to prohibit the erection of temporary power or telephone structures incident to construction, or otherwise by Developer in connection with development of the Project. Section 14.18 Gas. Storage tanks for gas service shall be fully screened from view. Section 14.19 Pools. No above-ground pools shall be erected, constructed or installed on any Lot; provided that inflatable, child-size pools with a diameter no greater than five feet are permitted in backyards; and provided further that hot tubs, below-ground pools and similar facilities may be permitted if approved by the CDC. Section 14.20 Artificial Vegetation, Exterior Sculpture, and Similar Items. No artificial vegetation shall be permitted on any Lot. Exterior sculptures, fountains, flags, and similar items must be approved by the CDC. Section 14.21 Energy Conservation Equipment. To the extent practicable, Owners are encouraged to use solar water heating equipment. No solar energy collector panels or attendant hardware or other energy conservation equipment shall be constructed or installed unless it is an integral and harmonious part of the architectural design of a structure and is approved by the CDC. Section 74.22 Excavation. No Excavation shall be made, except by Developer or otherwise in connection with Improvements approved as provided in this Declaration. Section 14.23 Continuity of Construction. All Improvements commenced on any Lot shall be prosecuted diligently to completion, pursuant to the Design Documents. Section 14.24 Supplementary Standards and Guidelines. Developer and/or the Board may establish and promulgate supplementary standards and guidelines applicable to the Project, not inconsistent with the Master Design Guidelines or the Design Guidelines set forth in this Article XIV. Such supplementary standards and guidelines may, but need not necessarily, include the following: (a) Time limitations for the completion, within specified periods after approval, of the Improvements for 3yhich approval is required pursuant to the Design Documents; (b) Procedures for supplementary review by the Board or Developer of an Owner's plans and specifications, as and to the extent deemed necessary or appropriate by the Board for compliance with this Declaration and the Design Guidelines; and (c) Such other limitations and restrictions as Developer or the Board, as appropriate, in their reasonable discretion shall adopt, including, without limitation, the regulation of all landscaping (including the absolute prohibition of certain types of land use, lighting, signage, landscaping, trees and plants), construction, reconstruction, exterior addition, change or alteration to or maintenance of any 99-0116 26015\3\158478.5 Page 39 building, structure, wall or fence, including, without limitation, the nature, kind, shape, height, materials, exterior color, surface texture, and location of any such Improvement. Section 14.25 Fee Assessment. The CDC, the Board and/or Developer may assess reasonable fees to Owners in connection with their roles in assuring compliance with the Design Documents. Section 14.26 Authority. Developer, the Board and the CDC shall have the authority and standing, but not the obligation, to enforce the Design Guidelines in courts of competent jurisdiction. Further, Developer or the Board may fix a fine of up to $10,000 for failure to obtain any required approval from the CDC and (if applicable) the Board, and may require security deposits to assure compliance. Section 14.27 Non-liability for Approval of Drawings and Specifications. By its part, if any, in assisting with the approval of the plans and specifications for a Lot, neither the Association, the Board, any officer or director of the Association, the CDC, nor Developer assumes any liability or responsibility therefor, or for assuring compliance with the Design Documents, or for any defect in any structure constructed from such plans and specifications. Neither the Association, the Board, any officer or director of the Association, the CDC, nor Developer shall be liable to any Owner or other= Person for any damage, loss or prejudice suffered or claimed on account of (a) inaccuracy of items shown or referenced on the Plot Plan, (b) the approval or disapproval of any plans and specifications, whether or not defective, (c) the grant or denial of any requests for variances to the Design Documents, (d) the construction or performance of any work, whether or not pursuant to approved plans and specifications, (e) the development, or manner of development of any property within the Property, (f) any change in the size, configuration or location of any Improvement or the changing of the natural grade of any Lot, or (g) the execution and Recording of an estoppel certificate by the CDC or otherwise pursuant to the Master Declaration or pursuant to the Design Documents, whether or not the facts therein are correct; provided, however, that such action, with the actual knowledge possessed by the decision maker, was taken in good faith. Approval of plans and specifications by the CDC or (if applicable) the Board, or the approval of any change in the size, configuration or location of any Improvement, or a change in the natural grade of any Lot is not, and shall not be deemed to be, a representation or warranty by the Association, the Board, any officer or director of the Association, the CDC or Developer that said plans, specifications or changes comply with applicable governmental ordinances or regulations including, but not limited to, zoning ordinances and building codes. Approval of plans and specifications by the CDC or (if applicable) the Board shall not be deemed a representation by the Association, the Board, the CDC or Developer that such plans and specifications comply with this De2rration or the Design Documents, nor be deemed a waiver by the Association, the Board, the CDC or Developer of any rights hereunder to enforce this Declaration and the Design Documents. Section 14.28 Inspection and Recording of Approval. Any member or authorized consultant of Developer or any authorized officer, director, employee or agent of the Association, may, at any reasonable time, enter, without being deemed guilty of trespass, upon any Lot, except the interior of any completed Dwelling Unit, after reasonable notice to the Owner, in order to inspect improvements constructed or being constructed on such Lot, or any changes in the grade thereof, to 990716 26015\3\158478.5 Page 40 ascertain that such Improvements or changes have been or are being built or changed in compliance with the Design Documents. Section 14.29 No Waiver of Future Approvals. The approval of the CDC and (if applicable) the Board of any proposals or plans and specifications or drawings for any work done or proposed, or in connection with any other matter requiring the approval and consent of the CDC or the Board, shall not be deemed to constitute a waiver of any right to withhold approval or consent as to any similar proposals, plans and specifications, drawings or matters whatever subsequently or additionally submitted for approval or consent. Section 14.30 Right of Removal. Any construction, alteration, or other work done in violation of the Design Documents shall be deemed to be nonconforming. Upon written request from the Board, Developer or the CDC, Owners shall, at their own cost and expense, remove such nonconforming construction, alteration, or other work and shall restore the Lot to substantially the same condition as existed prior to the nonconforming construction, alteration, or other work. Should an Owner fail to remove and restore as required in this Section 14.30, the Board, Developer, the CDC or their designees shall have the right, but not the obligation, to enter the Lot, remove the violation and restore the property to substantially the same condition as existed prior to the nonconforming construction, alteration or other work. The Owner shall be liable for all costs thereof together with= interest thereon at the maximum rate then allowed by law, and the Association shall have an Assessment Lien to secure the payment of such costs. Section 14.31 Development by Developer. Any provision of this Declaration or the Design Guidelines to the contrary notwithstanding, and except to the extent applicable pursuant to the Master Declaration and the Master Design Guidelines, the provisions of this Article XIV shall not apply to any Improvements, or other use of any portion of the Property, including the Lots, proposed or made by Developer in connection with its development, construction, promotion, marketing, sale or leasing of any Lot, Common Areas, or any other portion of the Property. Article XV Use Restrictions The Property shall be used in accordance with the covenants, conditions, restrictions and easements set forth in the Master Declaration, this Declaration, the Association Rules, the Master Design Guidelines and the Design Guidelines, as they may be amended from time to time, and applicable laws (including zoning ordinances and building codes). Nothing herein shall restrict or limit the Association Rul-e£and any supplementary design standards and guidelines from imposing more stringent or restrictive'standards than those contained in this Declaration or in the Master Declaration. Section 15.1 Hazardous Materials. Each Owner and Occupant shall comply with all federal, state and local statutes, regulations, ordinances, or other rules intended to protect the public health and welfare as related to land, water, groundwater, air or other aspects of the natural environment (the "Environmental Laws"). Environmental Laws shall include, but are not limited to, those laws regulating the use, generation, storage or disposal of hazardous substances, wastes and materials (collectively, the "Hazardous Materials"). No Owner or Occupant shall knowingly use, generate, manufacture, store, release, dispose of or knowingly permit to exist in, on, under or about 990716 Page 41 26015U\158478.5 any Lot, the Common Areas or any portion of the Property, or transport to or from any portion of the Property any Hazardous Materials except in compliance with the Environmental Laws. Section 15.2 Property Restrictions. No covenants, conditions, restrictions or easements shall be Recorded by any Owner or other Person, except Developer, against any Lot without the provisions thereof having been first approved in writing by the Board. Any covenants, conditions, restrictions or easements Recorded without the Board's approval being evidenced thereon shall be null and void. Section 15.3 Rezoning. No application for a general plan change or rezoning for or of any Lot, and no applications for variances, special permits, use permits or the like, shall be filed with any governmental authority unless the proposed use of the Lot has been approved by the Board and the proposed use otherwise complies with this Declaration. This provision shall not in any way prohibit, restrict or otherwise limit the right of Developer to apply for, prosecute and receive rezoning and/or reclassification of any portion of the Property then owned by Developer, or to apply for, prosecute and receive variances or use permits relating to such property. Further, this provision shall not in any way prohibit, restrict or otherwise limit the right of Developer or Tokyu to apply for, prosecute and receive rezoning of portions of the Property, in accordance with Article XVIII. Section 15.4 General Covenants, Conditions, Restrictions and Easements. In addition to those covenants, conditions, restrictions and reservations of easements set forth in the Master Declaration and the Master Design Guidelines, the following covenants, conditions, restrictions and reservations of easements and rights shall apply to all Lots (and the Owners and Occupants thereof); provided, however, that except to the extent applicable pursuant to the Master Declaration and the Master Design Guidelines, the provisions of this Section 15.4 shall not apply to any Improvements or other use of any portion of the Property, including the Lots, proposed or made by Developer in connection with its development, construction, promotion, marketing, sale or leasing of any Lot, Common Areas, or any other portion of the Property. (a) Single-Family Residential Use. All Lots shall be used only for the construction and occupancy of detached residential dwellings and typical residential activities incidental thereto. All Lots shall be used, improved, and devoted exclusively to Single-Family residential use; provided however that Developer, by indication on the Plot Plan, and/or the Board may designate or authorize use of certain Lots for "corporate retreat", "family compound" and similar extended or transient uses, subject to the Master Declaration and applicable law (including zoning ordinances and building codes). As provided in the Master Declaration, no gainful occupation, profession or trade shall be maintained on any Lot or in anyr ucture on any Lot without the prior approval of the Board of Directors of the Master Association. -Except as permitted by Developer or the Board, and subject to the Design Documents, no structure whatsoever, other than one Dwelling Unit and accessory structures authorized pursuant to the Design Documents and applicable law (including zoning ordinances and building codes), shall be erected, placed or permitted to remain on any Lot. (b) Violation of Law or insurance. No Owner or Occupant shall permit anything to be done or kept in or upon such Owner's Lot or in or upon any portion of the Common Areas which will result in the cancellation, or increase in premium, or reduction in coverage of insurance maintained by the Association or which would be in violation of any law. 99-0716 26015\3\158478.5 Page 42 (c) Animals. No animals, including without limitation horses or other domestic farm animals or poultry of any kind, may be kept, bred or maintained in or on any Lot or in or upon any portion of the Common Areas, except a reasonable number of commonly accepted household pets in accordance with the Association Rules. No animals shall be kept, bred or raised within the Property for commercial purposes. In no event shall any domestic pet be allowed to run free away from its owner's Lot without a leash, or conduct itself so as to create an unreasonable annoyance. The Owner shall be responsible for the immediate cleaning and repairing of any soiling of or damage to the Common Areas caused by the Owner's pet. (d) Safe Condition. Without limiting any other provision in this Section 15.4, each Owner shall maintain and keep his Lot at all times in a safe, sound and sanitary condition and repair and shall correct any condition or refrain from any activity which might interfere with the reasonable enjoyment by other Owners of their respective Lots or the Common Areas. (e) Drainage. No Owner shall erect, construct, maintain, permit or allow any fence or other Improvement or other obstruction which would interrupt the normal drainage of the land or within any area designated by recorded plat or otherwise as a "drainage easement." For the purpose hereof, "normal" drainage is defined as the drainage that exists at the time the Lot or Common Areas, or portions thereof, as the case may be, is or are conveyed to an Owner or the Association by- Developer, or later grading changes which are shown on plans approved by the CDC and (if applicable) the Board. Normal drainage may include drainage from Common Areas or other property across any Lot or other Common Areas. This Section 15.4(e) shall not be deemed to restrict or otherwise affect rights reserved to Developer to alter or change drainage patterns within or upon the Property. (f) Rental of Lots. An Owner who leases or otherwise grants occupancy rights to such Owner's Lot to any Persons shall be responsible for assuring compliance by the Occupant with all of the provisions of the Master Declaration, this Declaration, the Articles, Bylaws, Association Rules, the Master Design Guidelines and the Design Guidelines, all as amended from time to time, and shall be jointly and severally responsible for any violations by the Occupant thereof. (g) Maintenance of Lawns and Plantings; Access and Utility Easement Areas. Subject to the rights of the Association as to the Access and Utility Easement Areas, each Owner shall keep all shrubs, trees, hedges, grass and plantings of every kind located on the Owner's Lot (including setback areas), neatly trimmed, shall keep all such areas properly cultivated and free of trash, weeds and other unsightly material and shall maintain all paved and concrete areas, including driveways, roadways and parking areas, in goo "condition and repair. No Owner shall park, or permit to be parked, any vehicle on or within the Access and Utility Easement Areas, nor shall any Owner at any time place or permit to be placed or remain any other item on or within the Access and Utility Easement Areas, including without limitation boats, trailers, motorcycles and bicycles. No Owner shall cause or permit any nuisance or offensive use of the Access and Utility Easement Areas by the Owner or anyone claiming by, through or under the Owner. (h) Diseases and Insects. No Owner shall permit any thing or condition to exist upon any Lot which shall induce, breed or harbor infectious plant disease or noxious insects. ".0716 Page 43 26015V\158478.5 (i) Repair of Buildings. No Buildings on any Lot shall be permitted to fall into disrepair and each such Building shall at all times be kept in good condition and repair and adequately painted or otherwise finished. In the event any Building is damaged or destroyed, then, subject to the approvals required by Article XIV, such Building shall be immediately repaired or rebuilt or shall be demolished and the Lot upon which such improvements were located shall be cleared and restored to a presentable and safe condition. (j) Machinery and Equipment. No machinery or equipment of any kind shall be placed, operated or maintained upon or adjacent to any Lot except (i) such machinery or equipment as is usual and customary in connection with the maintenance or construction (during the period of maintenance or construction) of a Building, appurtenant structures, or other improvements; or (ii) that which Developer or the Association may require for the operation and maintenance of the Property. (k) Offensive Activity. No Lot shall be used, in whole or in part, for the storage of any property or thing that will cause such Lot to appear to be in an unclean or untidy condition or that will be obnoxious to the eye; nor shall any substance, thing, or material be kept upon any Lot that will emit foul or obnoxious odors or that will cause any noise or other condition that will or might disturb the peace, quiet, safety, comfort, or serenity of the occupants of surrounding property. No noxious or offensive activity shall be conducted upon any Lot. There shall not be maintained any plants or; animals or device or thing of any sort whose activities or existence in any way is noxious, dangerous, unsightly, unpleasant, or of a nature as may diminish or destroy the enjoyment of the Property. (1) Unsightly or Unkempt Conditions. The pursuit of hobbies or other activities, including specifically, without limiting the generality of the foregoing, the assembly and disassembly of motor vehicles and other mechanical devices, which might tend to cause disorderly, unsightly, or unkempt conditions, shall not be pursued or undertaken on any Lot. (m) Timeshare Prohibited. No timeshare, interval ownership, or other similar use or ownership shall be permitted within any Lot. (o) Restriction on Declaring a Condominium Property Regime. Without the prior written approval of the Board (which may be withheld for any reason in the sole and absolute discretion of the Board), no Lot shall be made subject to a declaration of condominium property regime or other such declaration or documentation allowing a Lot Owner to separately convey or transfer less than all of the improvements on such Owner's Lot. (pj Imp_ementation and Variances. The Board may implement the restrictions set forth in this Section 15.4, or otherwise restrict and regulate the use and occupancy of the Property and the Lots by reasonable rules and regulations of general or specific application adopted by the Board from time to time which shall be incorporated into the Association Rules. The Board may, at its option and in extenuating circumstances, but subject to the Master Declaration, grant variances from the restrictions set forth in this Section 15.4 if the Board determines, in its discretion, (a) either (i) that a restriction would create a substantial hardship or burden on an Owner or Occupant, or (ii) that a change of circumstances since the Recordation of this Declaration has rendered such restriction obsolete, and (b) that the activity permitted under the variance, in the reasonable opinion of the Board, 99-0716 26015\3\158478.5 Page 44 will not have any substantial adverse effect on the Owners and Occupants of the Property and is consistent with the high quality of life intended for Owners and Occupants in the Project. Section 15.5 Restriction on Further Subdivision and Consolidation. No Lot shall be further subdivided or separated into smaller lots or parcels by any Owner, and no portion less than all of any such Lot, nor any easement or other interest therein, shall be conveyed or transferred by any Owner without the prior written approval of the Board, which approval must be evidenced on the map, plan or other instrument creating the subdivision, easement or other interest. This provision shall not in any way prohibit, restrict or otherwise limit Developer from subdividing, separating, consolidating or resubdividing Lots or any other property at any time owned by Developer. An Owner may own more than one Lot which, if contiguous, may be combined into a single legal lot with the consent of the County and the Board; provided, however, that any such combination of Lots, except as hereinafter provided, shall not reduce or alter the voting rights obtained by ownership of each Lot nor shall it reduce or otherwise alter the amount which would have been assessed against the Owner of such Lots pursuant to the terms hereof or the Master Declaration in the absence of combination. The Owner of such Lots will be entitled to the rights of Membership in the Association for each such Lot. The Assessments attributable to each of the former separate Lots shall be attributable to the entire combination of Lots and the entire combination shall be subject to the Assessment Lien. Notwithstanding anything herein to the contrary, with the written consent of Developer or the Board (which may be withheld for any reason in the sole and absolute discretion of Developer or the Board), Lots may be combined and the Assessments and voting rights reduced to the Assessments and voting rights that would be applicable to one Lot, or otherwise appropriately allocated among Lots resulting from a consolidation and resubdivision of Lots. Section 15.6 Coastal Trail; Archaeological Features. Each Lot affected by the Coastal Trail, or any portion thereof, and/or any Archaeological Features, shall be owned, occupied and used subject to any and all rights and restrictions duly relating or appertaining to the Coastal Trail (including public access rights pursuant to and in accordance with the Public Access Plan) and such Archaeological Features, including such maintenance and preservation as may be applicable, and Developer's reserved rights relating thereto, as set forth in Section 20.8. Section 15.7 Zoning Classifications. (a) On en Zoning. Portions of the Property, including portions of certain Lots and the Common Areas, are located within the "Open" zoning district under the Hawaii County Code, as shown on the County zoning maps. Each affected Lot and the affected Common Areas shall be owned, occupied and used subject to such further and additional limitations and restrictions on use imparted by such Open zoningBistrict classification. Each Owner of an affected Lot acknowledges and agrees that certain Improvements otherwise permitted under the Design Documents may not be allowed in such portions of the Lot located within the Open zoning district. (b) Multi-Family Zonine. Portions of the Property, including all or portions of certain Lots and the Common Areas, are located within the "RM-3" (multi-family) zoning district under the Hawaii County Code, as shown on the County zoning maps. Such zoning district classification shall not be deemed to expand or otherwise affect the provisions of the Design Documents as to permitted uses of the affected portions of the Property. 99-0716 Page 45 260153\158478.5 (b) Resort/Hotel Zoning. Portions of the Property, including all or portions of certain Lots and the Common Areas, are located within the "V-1.25" (resort-hotel) zoning district under the Hawaii County Code, as shown on the County zoning maps. Such zoning district classification shall not be deemed to expand or otherwise affect the provisions of the Design Documents as to permitted uses of the affected portions of the Property. As provided in Article XVIII, certain rights are reserved with respect to rezoning of such affected portions of the Property. Article XVI Easements The rights and easements set forth in this Article XVI are in addition and without limitation to any other rights and easements created by or set forth in this Declaration. Section 16.1 Recorded Easements. The Common Areas and each Lot shall be subject to all easements shown on the File Plan, the Subdivision Map or any other Recorded subdivision map or file plan affecting the Common Areas or such Lot, and to any easement of record or of use or shown on the Plot Plans, which shall include use for construction, installation and repair of utilities, maintenance, encroachment, drainage and access. Section 16.2 Utility Easements. Developer shall have and hereby reserves the right for^ itself and its successors and assigns to designate, grant, convey, transfer, cancel, relocate, reserve or otherwise deal with any easements and rights of way at any time for the construction and maintenance of Common Areas or prospective Common Areas, and for utilities, water, sanitary and storm sewers, cable television, security and telecommunication lines, facilities and systems, access and similar purposes, upon, across, over, in and under the Property, including the Lots (and specifically, but without limitation, Easement 2 affecting Lot 18 as shown on the File Plan), the Common Areas and the Private Roads, including, without limitation, the right to install, construct, reconstruct, operate, maintain, repair and relocate such lines, facilities and appurtenances and to grant any such easements or rights of way to governmental or quasi-governmental authorities, utility or service companies, the Association or other entities; provided, however, that upon request by an Owner, Developer shall execute and record an estoppel certificate which shall, as to the Owner's Lot, limit the rights provided in this Section 16.2 to designated easement areas, setbacks, or other established or agreed utility corridors as set forth in the estoppel certificate. Each Owner, by purchasing a Lot, consents to any such designation, granting, conveyance, transfer, cancellation, relocation and reservation of easements and/or rights of way as provided above without the necessity of any Owner, or those claiming by, through or under an Owner, entering into any further agreement respecting such action or document; provided, however, that each Owner and those claiming by, through or under an Owner agrees to join in and execute such ecuments and instruments and do such other things as may be necessary or convenient to effect the same promptly at the request of Developer without payment of additional consideration. Each Owner further agrees to obtain from all appropriate parties, including its Mortgagee(s), the written subordination of any and all Mortgages, security interests and all other liens that encumber or in any way affect its respective Let to such easements and to all other easements, rights-0f-way and rights of access now set forth in or otherwise provided for in or contemplated by this Declaration, and such written subordination instruments shall be provided promptly and without delay to Developer and the Association when requested by Developer or the Association. Each Mortgagee and other holders of any security interest in any Lot, by accepting a security interest in or legal or 99,0716 26015\3\158478.5 Page 46 equitable title to a Lot, shall be deemed to have consented to and agreed that its security interest or legal or equitable title is subject to these easements and other rights and agrees to execute any instrument reasonably required to subordinate its debt and security instruments to such easements, rights-of-way and rights of access. Section 16.3 Maintenance Easement. Developer shall have and hereby reserves to itself and the Association, and their respective successors and assigns, an easement upon, across, over, in, and under any portion of the Property, including the Lots, the Common Areas and the Private Roads, and a right to make such use of such property as may be necessary or appropriate, to perform the rights, duties and functions that the Association is obligated or permitted to perform pursuant to this Declaration, including the right to enter upon any Lot for the purpose of performing maintenance to the landscaping or the exterior of Improvements to such Lot as and to the extent required or permitted by this Declaration. Section 16.4 Drainage Easement. Developer shall have and hereby reserves to itself and the Association, and their respective successors and assigns, the right and an easement to enter upon, across, over, in, and under any portion of the Property, including Lots, the Common Areas and the Private Roads, for the purpose of changing, correcting, or otherwise modifying the grade or drainage channels of any portion of the Property so as to improve the drainage of water on the Property.- Reasonable efforts shall be made to use this easement so as to disturb as little as possible the uses of the Owners, the Association and Developer, as applicable, to prosecute such drainage work promptly and expeditiously, and to restore any areas affected by such work to a sightly and usable condition as soon as reasonably possible following such work. Section 16.5 Additional Easements and Licenses. If Developer in its sole and absolute discretion determines that additional utility, roadway, drainage or other similar easements or licenses, whether or not contemplated or mentioned in this Declaration, between or across portions of the Property are reasonable, necessary, and desirable to effectuate the purposes of this Declaration, then, upon the request of Developer, and provided the proposed additional easements and licenses will not unreasonably interfere with the development, use and occupancy of any affected Lot, or unreasonably affect access to, or operation of, any affected Lot, each Owner and Mortgagee, as applicable, agrees to grant such additional easements and licenses across its Lot, without charge therefor, subject to such reasonable terms and conditions as shall be agreed upon between Developer and such Owner. Section 16.6 Easements for Encroachments. There shall be reciprocal appurtenant easements of encroachment as between each Lot and such portion or portions of the Common Areas adjacent thereto or-a_sdbetween adjacent Lots due to the unintentional placement or settling or shifting of the Improvements constructed, reconstructed, or altered thereon (in accordance with the terms of this Declaration) to a distance of not more than one foot, as measured from any point on the common boundary between each Lot and the adjacent portion of the Common Areas or as between said adjacent Lots, as the case may be, along a line perpendicular to such boundary at such point; provided, however, in no event shall an easement for encroachment exist if such encroachment occurred due to willful and knowing conduct on the part of an Owner, occupant or the Association. Any such easements for encroachment shall be for the encroachment and for the maintenance thereof. 99-0716 26015\3\158478.5 Page 47 Section 16.7 Public Easements. Developer shall have and hereby reserves to itself and the Association, and their respective successors and assigns, the right to designate and grant easements to the public (by or through the County or the State of Hawaii) for access to the shoreline and/or for the use of improvements related thereto, including without limitation Easement 3 affecting Lot 51, as shown on the File Plan, and the Coastal Trail, pursuant to and in accordance with the Public Access Plan. Such improvements may include, without limitation, parking areas, trails, restroom facilities and park benches. In addition, fire, police, health and sanitation, park maintenance and other public service personnel and vehicles shall have a permanent and perpetual easement for ingress and egress over and across those areas, if any, which, by the terms of this Declaration or other applicable covenant, or by contract or agreement, become the responsibility of the Owners of Lots, including, without limitation, property and improvements thereon to be maintained, which may be dedicated to the County or the State of Hawaii, but maintained by the Owners. Section 16.8 Easement Over Private Roads. Each Owner shall have a non-exclusive right to enter upon and use the Private Roads for ingress and egress purposes. Such right of entry shall automatically terminate with respect to the Private Roads, or portions thereof, upon dedication, if any, of the Private Roads or such portions thereof to the County, the State of Hawaii or any other governmental authority for public access purposes. Developer hereby discloses, and each Owner acknowledges, that Developer has the right and intends to use the Private Roads to conduct and= perform its construction and sales activities within the Project until all of the Lots have been completed and sold, and the Private Roads will be used for access purposes by other Owners in the Project. These activities may result in noise and other nuisances and hazards, including traffic congestion and temporary impairment of access to portions of the Project, and each Owner covenants that it assumes all risks associated with such Owner's use of the Private Roads. The provisions of this Declaration shall apply to and govern each Owner's use of the Private Roads, and each Owner shall indemnify and hold harmless Developer from and against any and all claims and demands for damages made by, through or under such Owner in connection with the right of entry hereunder. Section 16.9 Access and Utility Easement Areas. Developer shall have and hereby reserves to itself and the Association the right and an easement upon, across and under the Access and Utility Easement Areas for driveway access, utility and landscaping purposes, including without limitation installing, constructing, replacing, repairing and maintaining Improvements relating to such purposes. In addition thereto, there shall be reciprocal easements for driveway access purposes as between adjacent Lots over and across the Access and Utility Easement Area providing common access to such Lots, as shown on the applicable Plot Plan. Secti&Pr Pb.10 Easement in Favor of Tokyu. The Property, including the Lots, Common Areas and Private Roads, is subject to the following reservation in favor of Tokyu, its successors and assigns, as set forth in Limited Warranty Deed ("Tokyu Deed") dated October 16, 1998, Recorded in the Bureau as Document No. 98-155465: Designated easements over, under, across and through the Property for the pipeline transmission of water and other utilities, and designated easements over, under, across and through the Property for the benefit of, or in connection with the development of, other property currently owned by Tokyu or its affiliated companies in the vicinity of the Property, subject to the terms and conditions contained in the Tokyu Deed. 99-0716 26015V\158478.5 Page 48 Article XVII Recreational Facilities Section 17.1 Recreational Facilities. There may be included within the Common Areas certain Recreational Facilities (as defined in Section 1.52), which would be recreational and/or social amenities of the Association. Developer and the Association make no representations that any Recreational Facilities developed by Developer will continue in operation or that any of the Recreational Facilities will be available or sufficient to serve all eligible users should they choose to use the Recreational Facilities at the same time. Section 17.2 Costs of Maintenance and Upkeep. Without regard to the ownership thereof, the cost of operating the Recreational Facilities will be paid through the collection of Assessments, Special Use Fees, and consumer charges. The Board shall prepare budgets to include the fixed costs of operation and administration as well as the variable costs for the various services and facilities available at and through the Recreational Facilities. The Board shall, on an annual basis, determine the amount of such costs to be included as Common Expenses and the amount to be collected as Special Use Fees and consumer charges. The costs to be included as Common Expenses shall be collected as a General Assessment. The Board shall have the authority, in its discretion, to charge Special Use Fees and consumer charges for goods, services, and facilities, such as, in the way= of explanation but not limitation, snack bar and other sales of food and beverage, equipment rental, use of facilities and rental for special events. Section 173 Rights Reserved to Developer. Developer shall have the reserved rights relating to the Recreational Facilities as set forth in this Declaration (including all rights reserved to the Developer relating to use of the Common Areas and all other portions of the Property) or as otherwise declared or reserved in connection with the conveyance thereof to the Association. Section 17.4 Rights of the Association. The Association, by a majority vote of its Board, shall have the right to enter into commercially reasonable lease agreements with any Person to serve as a commercial operator of any or all of the Recreational Facilities, including the Beach Club. The Board shall have the right to make rules and regulations to govern and to control the use and operation of any or all of the Recreational Facilities, subject to Developer's reserved rights. Article XVIII Rezoning of the Property As refer~ced in Section 15.7 above, portions of the Property, including all or portions of certain Lots and ttie Common Areas, are located within the "V-1.25" (resort-hotel) zoning district under the Hawaii County Code. Each Lot Owner acknowledges that Developer has agreed to cooperate with Tokyu in order to obtain a "zoning swap" so that Tokyu does not lose the hotel zoning currently designated on portions of the Property. As such, Developer and Tokyu shall have the right (but not the obligation) to apply for, process and receive a change in zoning, as to all or portions of the Property currently located within the V-1.25 zoning district, to such other zoning classification as shall permit Single-Family residential uses in accordance with this Declaration. Such actions may be taken without the joinder or consent of the Owner(s) of the affected portions of the Property, or any Mortgagee thereof. However, to the extent required or requested by Developer and/or Tokyu, each 99-0716 26015\3\158478.5 Page 49 Owner and Mortgagee agrees to and shall take (at no expense to the Owner or Mortgagee) all actions reasonably necessary for Developer and Tokyu to apply for, process and receive the change of zoning in accordance with this Article XVIII. Article XIX Sewer System For sewage and wastewater disposal, all Lots must utilize the State of Hawaii Public Utilities Commission ("PUC") regulated central sewage treatment and collection system (the "Sewer System") owned and operated by Mauna Lani STP, Inc. ("MLSTP"). Owners (other than Developer in connection with its development of the Project) will not be permitted to use individual wastewater disposal systems. Sewer service shall be provided to Owners pursuant to terms and conditions established by MLSTP and its successors or assigns. Because the Sewer System will be owned and operated as a regulated utility pursuant to Hawaii Revised Statutes Chapter 269, as amended from time to time, the sewer service charges shall be as determined by the PUC. All Dwelling Units subject to this Declaration shall be connected to and serviced by the Sewer System. Each Owner of each Lot shall enter into the standard service/connection agreement made available by MLSTP and shall pay all such connection and service fees applicable thereto as provided in such operators tariff approved by the PUC. Each Owner acknowledges that such fees may include charges relating to the cost of the; construction, acquisition, maintenance, repair and operation of the Sewer System. Article XX Rights and Reservations Section 20.1 Reserved Rights. The rights, reservations and easements of Developer set forth in this Declaration shall be deemed excepted and reserved in each conveyance of any interest in property by Developer to the Association and in each deed or other instrument by which any portion of the Property is conveyed by Developer or any other Owner, whether or not specifically stated therein. The rights, reservations and easements of Developer set forth in this Declaration shall be prior and superior to any other provisions of this Declaration and may not, without Developer's prior written consent, be modified, amended, rescinded or affected by any amendment of this Declaration. Developer's consent to any one such amendment shall not be construed as consent to any other or subsequent amendment. The rights, reservations and easements of Developer set forth in this Article XX are in addition to, and shall in no way affect or otherwise be interpreted to limit or restrict any of the rights, reservations aril ea ents of Developer contained elsewhere in this Declaration. Section 20.2 Developer's Rights to Use Common Areas in Development, Promotion and Marketing of the Property. Developer shall have and hereby reserves the right to the use of the Common Areas, and of services offered by the Association, in connection with the development, construction, promotion, marketing, sale, leasing and use of all or any portion of the Property. Without limiting the generality of the foregoing, Developer may: (a) erect and maintain on any part of the Common Areas such signs, temporary buildings and other structures as Developer may reasonably deem necessary or proper in connection with the development, construction, promotion, marketing, sale and leasing of all or any portion of the Property; (b) use vehicles and equipment on the Common 99-0716 26015\3\158478.5 Page SO Areas and Private Roads for developmental, construction and promotional purposes; (c) permit users and prospective purchasers of all or any portion of the Property who are not Owners, to use or enter the Common Areas and Private Roads; and (d) make reference to the Association and to the Common Areas and services offered by the Association and to the Recreational Facilities in connection with the development, construction, promotion, marketing, sale and leasing of all or any portion of the Property. Section 20.3 Developer's Rights to Complete Development. No provision of this Declaration shall be construed to prevent or limit Developer's rights to complete the development, construction, promotion, marketing, sale and/or leasing of all or any portion of the Property; to construct or alter Improvements on any property (including Lots) owned by Developer within the Property; to maintain model homes, short term lodging facilities, parking areas, offices for construction, sales or leasing purposes or similar facilities on any property (including Lots) owned or leased by Developer or owned by the Association within the Property; to post signs incidental to the development, construction, promotion, marketing, sale, leasing and/or use of the Property, or any portion thereof, or to apply for, process and receive zoning or changes in zoning or to uses of, or changes in density of, or other changes in any land use restrictions affecting all or any portion of the Property, so long as Developer or its affiliate or assign is the owner (or has the consent of the Owner) of the property affected or as otherwise provided in Article XVIII. Nothing contained in this Declaration shall limit the right of Developer or require Developer to obtain approval to: (a) excavate, cut fill or, grade any property owned by Developer or to construct, alter, remodel, demolish or replace any Improvements on any Common Areas or any property owned by Developer; (b) use any structure on any property owned or leased by Developer or any Common Areas as a construction office, model home, short term lodging facility or real estate sales or leasing office in connection with the sale of any such properties; (c) seek or obtain the approval of the CDC (except as otherwise required pursuant to the Master Declaration) or of the Association for any such activity or improvement to property by Developer on any property owned by Developer or any Common Areas; or (d) apply for, process and receive zoning or changes in zoning or to uses of, or changes in density of, or other changes in any land use restrictions affecting all or any portion of the Property, so long as Developer or its affiliate or assign is the owner (or has the consent of the Owner) of the property affected or as otherwise provided in Article XVIII. It shall be expressly permissible for Developer to maintain and carry on upon the Common Areas or any property (including Lots) owned or controlled by Developer such facilities and activities as in the sole discretion of Developer may be required, convenient or incidental to the development, construction, promotion, marketing, sale, leasing and use of all or any portion of the Property. Section 20.4 Developer's Rights to Change Subdivision Map, File Plan. Developer shall have and hereby resent%s the right for itself and its successors and assigns to modify and/or amend the Subdivision Map and/or the File Plan, provided that, unless such modification or amendment is consented to by directly affected Owners or is otherwise permitted pursuant to this Declaration, such modification or amendment shall not have a material adverse effect on the interests of any Owners owning Lots at the time of such modification or amendment to the Subdivision Map or the File Plan. Section 20.5 Developer's Rights Incident to Construction. Developer, for itself and its successors and assigns, hereby retains a right and easement of ingress and egress over, in, upon, under, and across the Common Areas and the right to store materials thereon and to make such other use thereof as may be reasonably necessary or incident to the development of and construction on any 99-0716 26015\3\158478.5 Page 51 portion of the Property, or any other property owned by Developer; provided, however, that no such rights shall be exercised by Developer in such a way as to unreasonably interfere with the occupancy, use and enjoyment of, or access to, a Lot by the Owner or Occupant thereof. Section 20.6 Construction at or Adjacent to Project and Access. Each Owner, in purchasing or otherwise taking title to any Lot, shall do so with the express understanding and acknowledgment that construction activity by Developer or other Owners or Occupants may continue in the Project area and adjacent areas after such Owner has occupied the Lot and that this activity may result in noise, dust, or other annoyances to the Owner and may limit the Owner's access to portions of such Lot or other areas adjacent thereto, and each Owner shall thereby accept any such inconvenience or annoyance and expressly waive any rights, claims, or actions which the Owner might otherwise have against Developer or third parties as a result of such circumstances. Section 20.7 Transfer of Developer's Rights. Any or all of the rights, reservations and easements of Developer may be transferred to any other Person, provided that the transfer shall not enlarge a right or reservation beyond that contained herein, and provided further, no such transfer shall be effective unless it is in a written instrument signed by Developer and Recorded. Section 20.8 Coastal Trail; Archaeological Features. Without limiting any other provision of this Declaration relating to the Coastal Trail, the Public Access Plan and/or the" Archaeological Features, Developer shall have and hereby reserves the right to negotiate and agree with the County and other appropriate entities as to the location and grade of the Coastal Trail, to enter upon affected Lots to change the grade or otherwise improve or modify the Coastal Trail, to designate easements for access, use, maintenance and other purposes relating to the Coastal Trail and/or the Archaeological Features, and to convey such easements to the County, the Association, the Master Association and/or other appropriate entities as may be required by the County or otherwise deemed appropriate by Developer in connection with the development, construction, promotion, sale, use and/or ownership of the Property, or portions thereof. Section 20.9 Withdrawal of Property. Developer may and hereby reserves the right to unilaterally at any time remove and release any portion of the Property from coverage of this Declaration and the jurisdiction of the Association, provided that: (i) Developer, or an affiliate of Developer, is the owner of such portion of the Property to be so removed and released; and (ii) a Notice of Withdrawal of Property, executed by Developer, is Recorded. The removal and release of any portion of the Property shall be effective upon the date of Recordation of the Notice of Withdrawal of Property, or such later date as may be provided in the Notice of Withdrawal of Property. The Notice of Withdrawal of Pr__o.~~,e,rty_shall contain a legal description of the portion of the Property to be removed and released, and sl-iatf-note the removal and release of this Declaration as an encumbrance upon such portion of the Property. Upon removal and release pursuant to this Section 20.9, such portion of the Property shall be free and clear of, and no longer subject to, any of the terms, covenants, conditions and restrictions contained in this Declaration. No removal and release pursuant to this Section 20.9 shall cancel Assessments, if any, then due and payable by the Owner of such portion of the Property, nor cancel any Assessment Lien then existing against such portion of the Property. Section 20.10 Reserved Right in Favor of Tokyu. The Property, including the Lots, Common Areas and Private Roads, is subject to the following reservation in favor of Tokyu, its 994716 26015\3\158478.5 Page 52 successors and assigns, as set forth in Limited Warranty Deed dated October 16, 1998, Recorded in the Bureau as Document No. 98-155465: All rights to underground water under the Property. Section 20.11 Developer's Rights Related to the Realignment of the Access Road. Developer shall have and hereby reserves the right for itself and its successors and assigns, without having to obtain the joinder or consent of the Owners or any Mortgagees, to take such steps and perform such acts as are necessary or convenient to carry out the terms and provisions of that certain Easement Rights and Boundary Realignment Agreement dated October 16, 1998, Recorded in the Bureau as Document No. 98-1 5 5 467 (the "Easement Rights Agreement"). Such steps and acts shall include, but shall not be limited to, a consolidation and resubdivision to realign certain boundaries between portions of the Property and adjoining real property and the Recordation of deeds and/or other appropriate instruments for the purpose of vesting the realigned parcels with the appropriate Persons. In accordance with the Easement Rights Agreement, upon such consolidation, resubdivision and Recordation, among other things, the following will automatically occur: (i) a new roadway lot providing access to and within the Project will be created (which new lot is referred to herein as the "Realigned Access Road"), which shall replace the roadway lot originally providing access to and within the Project; and (ii) "Easement A", described in the Easement Rights Agreement, and all rights granted to Owners with respect to said Easement A, will terminate. Developer grants to each Owner a nonexclusive easement for access and utility purposes to be used in common with others entitled= thereto over and across the Realigned Access Road, which grant shall take effect automatically and immediately upon termination of Easement A and creation of the Realigned Access Road as provided in this Section 20.11. Developer may and hereby reserves the right to amend the description of the Property hereunder to include the Realigned Access Road and remove or release appropriate portions of the originally configured roadway lot excluded from the Realigned Access Road. Article XXI Developer's Disclaimer of Representations Developer makes no warranties or representations whatsoever that any plans represented or envisioned for development of Mauna Lani Resort can or will be carried out, or that any land now or hereafter becoming part of or within Mauna Lani Resort is or will be committed to or developed for a particular (or any) use, or that if such land is once used for a particular use, such use will continue in effect. Article XXII Limitation on Liability Section 22.1 Developer. Anything to the contrary in this Declaration notwithstanding, each Owner, by accepting title to any portion of the Property and becoming an Owner, acknowledges and agrees that neither Developer (including without limitation any assignee of the interest of Developer hereunder) nor any officer, director, member, partner or shareholder of Developer (or of any such assignee) shall have any personal liability to the Association, or to any Owner, Member or other Person, arising under, in connection with, or resulting from (including without limitation resulting from action or failure to act with respect to) this Declaration or the Association except, in the case of Developer (or its assignee), to the extent of its interest in the Property; and, in the event of a judgment 99-0716 Page 53 26015\3\158478.5 no execution or other action shall be sought or brought thereon against any other assets, nor be a lien upon such other assets, of Developer (or its assignee). Section 22.2 Mauna Lani Entities. Neither any of the Mauna Lani Entities nor Mauna Lani STP, Inc. is a co-developer of any development of the Property or a co-Developer hereunder or in any way responsible for the design and/or construction of the grading and fill work relating to the Project and the roads, water system, sewer system and other infrastructure and subdivision improvements for Developer's development activities on the Property. Article XXIII Resort-Related Activities: Shoreline Hazards Section 23.1 Resort-Related Activities. Each Owner, by taking title to a Lot, understands and agrees that his Lot may be adjacent to or near one or more golf courses and other resort facilities and that resort-related activities may be held within the Property or in the vicinity of the Property. Each Owner acknowledges that the location of such Owner's Lot within the Property may result in nuisances or hazards to persons and property on the Lot as a result of golf course operations or as a result of such other resort-related activities. Each Owner covenants for itself, its heirs, successors, successors-in-title and assigns, that it shall assume all risks associated with such location, including, but not limited to,° the risk of property damage or personal injury arising from errant golf balls or actions incidental to such resort-related activities. Under no circumstances shall Developer, the Association, the Board or the owner(s) of the golf courses be held liable for any damage or injury resulting from errant golf balls. Each Owner further covenants that the Association and Developer shall have the right, in the nature of an easement, to subject all or any portion of the Property to nuisances reasonably incidental to the maintenance, operation, or use of the Recreational Facilities, and to the carrying out of resort-related activities on or in the vicinity of the Property. Section 23.2 Shoreline Hazards. Each Owner acknowledges that portions of the Project are located adjacent to and in the vicinity of beaches, the shoreline and the ocean, and that portions of the Project, including the Common Areas, may allow or are intended for use as access for Owners and others to the beaches, the shoreline and the ocean. Each Owner further acknowledges that the beaches, the shoreline and the ocean present unique and significant hazards and damages to persons and property, and that neither Developer, the Association nor the Board assumes or shall have any obligations to protect or warn against hazardous or dangerous conditions relating to the beaches, the shoreline or the ocean. Each Owner covenants for itself, its guests, tenants, invitees, heirs, successors, successors-in-title and assigns, that it shall assume all risks associated with the Project's location adjacent to and in tl ieinity of beaches, the shoreline and the ocean, and all risks associated with use of beaches, the shoreline and the ocean by or through the Owner, and that neither Developer, the Association nor the Board shall have any liability with respect thereto. Each Owner, for itself, its guests, tenants, invitees, heirs, successors, successors-in-title and assigns, expressly waives any rights, claims or actions which the Owner or such other person might have or assert against Developer, the Association and/or the Board as a result of or relating to use of or conditions relating to the beaches, the shoreline or the ocean. 99-0716 26015\3\158478.5 Page 54 Article XXIV Amendment Section 24.1 Amendment to Declaration. Amendments to this Declaration shall be made by an instrument in writing entitled "Amendment to Declaration" which sets forth the entire amendment. Except as otherwise specifically provided in this Declaration, any proposed amendment must be approved by a majority of the Board prior to its adoption by the Members. Amendments may be adopted upon the vote or written assent of the Members representing at least 75 percent of the total votes of the Class "A" Membership. In all events, the amendment when adopted shall bear the signature of the President or a vice president of the Association and shall be attested by the secretary or an assistant secretary of the Association, who shall state whether the amendment was properly adopted, and shall be acknowledged by them as officers of the Association. Amendments once properly adopted shall be effective upon Recording of the Amendment to Declaration, or at such later date as may be specified in the amendment. Section 24.2 Effect of Amendment. Any amendment to this Declaration properly adopted will be completely effective to amend any and all provisions of this Declaration which may be affected and any or all clauses of this Declaration, unless otherwise specifically provided in the Section being amended or the amendment itself. Section 24.3 Required Approvals. Notwithstanding the foregoing provisions of this Article XXIV: (a) Until the Final Transition Date, this Declaration may not be amended by the Members pursuant to Section 24.1 without the written consent of Developer, which consent may be withheld for any reason in the sole and absolute discretion of Developer, and the following provisions of this Declaration may not be amended at any time (including after the Final Transition Date) without the written consent of Developer: Sections 3.4; 5.7; 5.8; 5.9; 5.10; 7.10; 14.31; 17.3; 24.3; 26.6; and any of the provisions contained in Articles XVI; XX; XXI; XXII; XXIII; XXV; nor may this Declaration be amended at any time without the written consent of Developer to remove, revoke or modify any right or privilege of Developer under this Declaration. (b) Until the Final Transition Date, Developer reserves the right to unilaterally amend this Declaration without the approval of the Board or the Members; provided, however, that after the conveyance of the first Lot to an Owner other than Developer, any such amendment shall have no material adverse. effect upon the rights or obligations of any Owner other than Developer, other than as express permitted in this Declaration; thereafter and otherwise, this Declaration may be amended only in the manner provided in Section 24.1. Nothing contained in this Article XXIV shall be deemed or construed to limit or restrict the right of Developer to amend this Declaration pursuant to Section 20.9. (c) This Declaration may not be amended in any manner which affects the obligations of the Owners relative to the Master Declaration and the Master Design Guidelines, without the prior written consent of the appropriate entity thereunder. 99,0716 Page 55 2601513\158478.5 Section 24.4 Requested Amendment; Legislative Change. Subject to the limitation on Developer's right to amend this Declaration in Section 24.3(b), but without limiting Developer's reserved right to amend this Declaration as provided in Section 24.3(b), Developer specifically reserves the right to amend all or any part of this Declaration to such an extent and with such language as may be requested by the Federal Housing Administration ("FHA"), the Veterans Administration ("VA"), the Federal National Mortgage Association ("FNMA") or the Federal Home Loan Mortgage Corporation ("FHLMC"), and to further amend to the extent requested by any other federal, state or local governmental agency which requests such an amendment as a condition precedent to such agency's approval of this Declaration, or by any chartered lending institution as a condition precedent to lending funds upon the security of any Lot or any portions thereof. It is the desire of Developer to retain control of the Association and its activities for so long as Developer desires to do so. If any amendment requested pursuant to the provisions of this Section 24.4, or if any federal, state or other legislation hereafter enacted, diminishes or alters such control, Developer shall have the right to prepare, provide for and adopt as an amendment hereto, other and different control provisions to achieve such control or equivalent control. Article XXV Term: Termination This Declaration shall be effective upon the date of Recordation hereof and, as amended from time to time, shall continue in full force and effect for a term of 30 years, and thereafter shall continue for successive periods of 15 years each, unless there is an affirmative vote, not more than 360 days prior to the date otherwise scheduled for commencement of the next extension of the term of this Declaration, to terminate this Declaration by a vote of ninety percent (90%) of the Members at a duly held meeting of the Members, or without any meeting if all Members have been duly notified and if ninety percent (90%) of the Members consent in writing to such termination within said 360-day period. This Declaration may be terminated at any time upon the vote or written assent of the Members representing at least ninety percent (90%) of the total votes of the Class "A" Membership, and the Class "B" Member if such exists. Anything in the foregoing to the contrary notwithstanding, no vote to terminate this Declaration shall be effective unless and until the written consent to such termination has been obtained, within a period of 180 days prior to such vote to 180 days after such vote, from the holders of Recorded First Mortgages on seventy-five percent (75%) of the Lots upon which there are such Recorded First Mortgages. If the necessary votes and consents are obtained, the Board shall cause to be Recorded a Certificate of Termination, duly signed by the President or a vice president of the Association and attested by the secretary or an assistant secretary of the Association. Thereupon, this Declaration, as of the date the next extension of the term hereof would otherwise have commenced, shall have no farth-ex~ce and effect, and the Association shall be dissolved. Article XXVI General Provisions Section 26.1 Notice. Notices to the Association provided for in this Declaration, the Bylaws, Association Rules or Design Guidelines shall be in writing and shall be addressed to the Association at the address specified in the Bylaws. The Association may designate a different address or addresses for notice by giving written notice of such change of address to all Owners. If notice of any action or proposed action by Developer, the Association, the Board or any committee or of any 99-0716 26015\3\158478.5 Page 56 meeting is required by applicable law, this Declaration or resolution of the Board to be given to any Owner or Occupant then, unless otherwise specified herein or in the resolution of the Board, such notice shall be considered delivered and effective upon personal delivery, or three days after posting, when sent by certified mail, to the address of such Owner on file in the records of the Association at the time of such mailing. This Section 26.1 shall not be construed to require that any notice be given if not otherwise required and shall not prohibit satisfaction of any notice requirement in any other manner. General notices to all Owners or any classification thereof need not be certified, but may be sent regular first class mail. Section 26.2 Captions; Construction. Captions given to various Articles and Sections herein, and the Table of Contents for this Declaration, are for convenience only and are not intended to modify or affect the meaning of any of the substantive provisions hereof. The provisions of this Declaration shall be liberally construed to effectuate its purpose of creating a uniform plan for the development and operation of the Property and the Project as herein set forth. Section 263 Severability. If any provision of this Declaration, the Articles, Bylaws, Association Rules or Design Guidelines, or any section, clause, sentence, phrase or word, or the application thereof in any circumstance, is held invalid, the validity of the remainder of this Declaration, the Articles, Bylaws, Association Rules or Design Guidelines, and of the application of any: such provision, section, sentence, clause, phrase or word in any other circumstances, shalt not be affected thereby, and the remainder of this Declaration, the Articles, Bylaws, Association Rules or Design Guidelines shall be construed as if such invalid part were never included therein. Section 26.4 Rule Against Perpetuities. If any of the options, privileges, covenants or rights created by this Declaration shall be unlawful, void or voidable for violation of the rule against perpetuities, then such provision shall continue until 21 years after the death of the last survivor of the now living descendants of Bill Clinton, president of the United States. Section 26.5 Mortgage of Lots. Each Owner shall have the right, subject to the provisions hereof, to make separate Mortgages for his respective Lot. No Owner shall have the right or authority to make or create or cause to be made or created any Mortgage, or other lien or security interest, on or affecting the Property or any part thereof, except only to the extent of such Owner's Lot. Section 26.6 Power of Attorney. Unless otherwise specifically restricted by the provisions of this Declaration, in any instance in which the Association, Developer or other Person is empowered to take any action or do any act, including but not limited to action or acts in connection with the Common Areas or sale thereof, which may at any time be deemed to require the act of an Owner or Member, the Owners and Members and each of them hereby constitute and appoint the Association, Developer or such other Person, as appropriate, as their attorney-in-fact for the purposes of taking such action or doing such acts including but not limited to executing, acknowledging and delivering any instruments or documents necessary, appropriate or helpful for such purposes. It is acknowledged that this power of attorney is irrevocable and coupled with an interest and by becoming an Owner or a Member of the Association or by the acceptance of a deed for a Lot or by signing a contract for purchase of a Lot or by succeeding in any other manner to the ownership of a Lot, or any interest therein, or a Membership in the Association, each Owner and Member shall be deemed and construed to have ratified and expressly granted the above power of attorney. 99-0716 26015\3\158478.5 Page 57 Section 26.7 Gender. Masculine, feminine and neuter references herein each shall include the others as the context requires. Section 26.8 Interpretation. Except for judicial construction, the Association, by its Board, shall have the exclusive right to construe and interpret the provisions of this Declaration. In the absence of any adjudication to the contrary by a court of competent jurisdiction, the Association's construction or interpretation of the provisions hereof shall be final, conclusive and binding as to all persons and property benefited or bound by the provisions hereof. Section 26.9 References to Declaration in Deeds. Deeds to and instruments affecting any Lot or any part of the Property may contain the provisions herein set forth by reference to this Declaration; but regardless of whether any such reference is made in any deed or instrument, all of the provisions hereof shall be binding upon the grantee-Owner or other person claiming through any instrument and his heirs, executors, administrators, successors and assigns as though set forth in full in such instrument. Section 26.10 Incorporation of Exhibit. Exhibit "A", as it may be amended in accordance with this Declaration, is incorporated into this Declaration by this reference. Section 26.11 Rights of Enforcement. The Association and Developer shall have the right to enforce the provisions of the Master Declaration, this Declaration, the Articles, Bylaws, the Master Design Guidelines, the Design Guidelines, the Association Rules and/or any and all covenants, restrictions, reservations, charges, servitudes, assessments, conditions, liens or easements provided for in any contract, deed, declaration or other instrument which (i) shall have been executed pursuant to, or subject to, the provisions of this Declaration, or (ii) shall indicate that the provisions of such instrument were intended to be enforced by the Association or by Developer. Such right shall include the hiring of legal counsel and undertaking legal action, as may be reasonably necessary for such enforcement. If, however, after the Final Transition Date, the Association shall fail or refuse to enforce this Declaration, the Articles, Bylaws, the Design Guidelines, the Association Rules or any provision thereof for an unreasonable period of time after written request to do so, then an Owner may enforce such provisions on behalf of the Association by any appropriate legal action, whether at law or in equity. In addition to all other rights pursuant to the Master Declaration, the Master Association and the Community Design Committee shall have the right, but not the obligation, to enforce this Declaration and the Design Guidelines. 99-0716 26015\3\158478.5 Page 58 Developer has duly executed this Declaration as of the date first referenced above. SEA CLIFF DEVELOPMENT, LLC, a Delaware limited liability company By Sea Cliff Associates, LLC, a Hawaii limited liability company Its Member By Sea Cliff Holdings, LLC, a Hawaii limited liability company Its Member By Bill Mills Holdings, LLC, a Hawaii limited liability company Its Member By 4 Bill D. Mills Its Member Developer 26015\3\158478.4 STATE OF HAWAII ) SS. CITY AND COUNTY OF HONOLULU ) On this X311 day of 19 ~ before me personally appeared 5i/~ D. 44%115 mTd- to me personally known, who, being by me duly sworn or affirmed, did say that such persons executed the foregoing instrument as the free act and deed of such persons, and if applicable in the capacities shown, having been duly authorized to execute such instrument in such capacities. a • Notary Public, State of Hawaii / Type or Print Name: Sh%r/t S. ffic~aS~Zra~a G My commission expires: 7-tea of 26015\3\158478.4 EXHIBIT "A" All of those certain parcels of land situate at Kalahuipuaa and Anaehoomalu, District of South Kohala, Island and County of Hawaii, State of Hawaii, being LOTS 1 to 55, inclusive, and Easements i to 5, inclusive, of "49 BLACK SAND BEACH", as shown on File Plan Number 2246, filed in the Bureau of Conveyances of the State of Hawaii, and containing an area of 59.317 acres, more or less. TOGETHER WITH an easement for access and utility purposes to be used in common with others entitled thereto over and across Lot 2 of the "MAUNA LANI RESORT - PHASE V" (File Plan 2100), known as Kaniku Drive, and over and across Lot 12 of the "MAUNA LANI RESORT - PHASE IV" (File Plan 1926), known as Mauna Lani Drive, which runs into Queen Ka'ahumanu Highway, a public highway, said Lots 2 and 12 being roadway lots. 26015\3\158478.5 Attachment 2 PLANNING REPORT Nonsignificant Zoning Change Request at Mauna Lani Resort Introduction Mauna Lani Resort, Inc. (MLRI) and Sea Cliff Development LLC are requesting a determination and administrative approval of a nonsignificant zoning change for about 65 acres on parcels at the Mauna Lani Resort. The proposed changes involves Hotel (V-1.25) and Multiple Family Residential (RM-4) zones and would not result in any net change to the resort's zoning acreages or densities. The following is a description of the subject areas and a discussion of the nonsignificant zoning change request. In this report, the two companies are referred to as Mauna Lani and as Sea Cliff. State of Purpose and Qualification The purpose of this request is to exchange the resort zoning district on the Sea Cliff property, 49 Black Sand Beach, with the multiple family residential zoning on the Mauna Lani Resort Site M-1. Relocating the resort zone onto Site M-1 would allow the applicant to continue to have a site available for future hotel use. Redesignating the Sea Cliff property to Multiple Family Residential would not affect the current residential project now under development on the property. This request qualifies as a nonsignificant zoning change because the action would not change the existing zoning acreages or densities. The affected areas have also been previously zoned resort or multifamily. Finally, the request is consistent with the County of Hawaii's General Plan which designates Mauna Lani Resort as a major resort area and resort use where the subject properties are located. Descriltion of Property This request affects the following properties: I . Site M-1 : This is a 49-acre parcel (TMK (3) 6-8-22:10) located at the intersection of North Kaniku Drive and the Mauna Lani service road. This request affects 32.519 acres of this parcel. The site is relatively flat and is undeveloped. 2. 49 Black Sand Beach Project: This is a 49-lot residential subdivision located on the south side of the Mauna Lani Bay Hotel. This request affects 32.519 acres of the subdivision which is presently under construction. Background The subject properties were part of the 1986 LUC decision (LUC Docket no. A84-583) that expanded to the original Urban District at Mauna Lani Resort. Condition 5 of that 1 1986 LUC action stated, "Petitioner shall develop a full-service hotel on the Property in conjunction with the recreational and residential project to ensure employment opportunities." The present zoning configuration for the affected parcels occurred in 1995 (Ordinance Nos. 95-37 and 95-64). See Figures 2 and 3, Existing Zoning. Need for the Request The proposed exchange of multifamily and resort zoning designations will allow Mauna Lani Resort to maintain a future hotel site and satisfy Condition 5 of the 1986 LUC amendment. Legal Description of the Property Written descriptions and maps are included as Attachment 3 of this application submittal. An AutoCAD disk with the map files is also part of the application submittal. Calculation of Proposed Request The calculations for the proposed request is shown below. The affected area is about 70% of the total property area. Note that the 32. 519 acres being converted from RM-4 to V-1.25 is equal to the 32.519 acres being converted from V-1.25 to RM-4. There is no net increase in the acreage of RM or V zoning. Tax Map Key Total Area Affected Area % of Total (3) 6-8-22:portion of 10 49.066 acres 32.519 acres (RM-4 to V-1.25) (3) 6-8-33: 3 to 11, 34 to 48, 52, 43.710 acres 32.519 acres (V-1.25 and portions of 1, 2, 12, 13, 20, to RM-4) 21, 32, 33, 49, 50, and 53 92.776 acres 65.038 acres 70.1% Surrounding Property Owner/Lessee Notification The notification list of property owners and lessees within 300 feet of the subject properties are included in Attachment 4. Related tax maps are also part of this attachment. Conclusion The above analysis demonstrates that the request qualifies as an administrative determination for a nonsignificant zoning change. The change would result in no net change of zoning area or density and is consistent with the General Plan designation of Mauna Lani Resort as a resort destination area. 2 ' • • 9849.0500/001 -1 k6/6/00 1 Ego 5L9 7 F m 2 d . -z__� _�Q CC y c Sr LL V cz Q �o ----------;:2, .ttZ-5" (j 009 y 4)- \,,,y / W �a 1 O. cm �P a °m �/_,/if y c i 0 1 d ll c ;\ W � 4.v 1 c W�� / e � �. go % � , J Y°1, g 1 s � a2 1 •5a• v ex . 1 UQ C/ 1 as 99, tp / i / /� t �' \ f 2 8 - g g ....--; ( :0'&y.. 6 IV U ar c$� a �� �` e : m ai � � p-m ' , �' / kit / # \ya o- r E / 0 / / � i1 m ✓yam c / tIIJ I / u g M1 c rt 1 d 9 L 1 werl ok / % a CO iN Y j co / 1 '4 5 aw , 1w 0 < 1 tiff , � ti 'r�� ! W 9 st 3�+I_ / V 9 � J L /1 g / � / }�1 r j J r 7 � / C o i '� co % Xt 8 w o w 1 r o oCO 1 / O L r, ../ ..ZZ''. S 1 `4 a f / 0 4 6 / 1 1' • Orso co-al 9849.0500/002 -2 k5/30/00 / N o N A ' `) Z N N Z d = N WO Q w C LL gi� M Z t / Cr w g a / / X 0 W N m 1 1 c m cr ri r U N W °' F m (A o Z ` o I ; - a' m C 1 N 1 _ o 5 1 I Q ppF O N I in V) 1 1 `� Y �y / T a N J a d 1 w n Z w w J 1 O CC I 0 N ' w W LL Z_ W 1 J J U o N 1 1 t • 9849.0500/002 -1 k5/30/00 v MC7 o''m °o ' N? S30 /� 7Z iiI a1 Of 0 1 co ��/ ii ni o, O/ / �� O / Z L U / / i / / / rte / `` / W N m ' / /jam / K Y U � .... 1> . „../, • _L___ ¢ f 2 / S. '0 0 0 rc � 4 Z r In 0 / J J O m c 7 / 1 1 it / 2 ,4 --- \ .. . c ; i -----' J pppp ° cd 0. cn c V C � l co / 0 Y \ I \ ' 0 4 .0 0 0 0 ' \ \_ 3^ a o • ii ou \ o \ o 1 M 1 4 le rc % . p CO I. 1 o le a � 0 o _ '^ \ 4 411/4 111 1 i / w , -- is rift, , LU O O J ° co 111 O / \, ,A F U /'''''''°"''" / / / Y O C O Ln O 0 0 N J ,� 0 .-� \ 1 Z 9849.0500/0023 k5 /30/00 • • / Tr V) to N O I /r d O a A N 7 t N N p : c LLQ � _ c _ re) V co ' / IX / 0 7 0 LLI om IX / / 0 oa O. N N ' o E co CC ° a / 2 2 c 1 - C / N N y co cu e cc 2 co co 2 1 f 0 5 ( . 1 1 I N 1 Q O I C ' Q a N 0. O o a` ' • Z W W I ° 1 ^� O O 1 W W Z . W J 1 U co 1 1 • • • 984990500/00 -4 — k5/30/00 L V °! 1 too y 'g 1 J D a a co N Q 0,2 Q y C a a M _ mO O . / / o / U mo 1 ( // /ice` W o J � / \\ ° // y c > r� M \\ a N °m ' ��� Y 0 � � / \ U d I � U f � J m t ��� — S p u / o Z /. ''. p Y , 0 I (.... r --°"....°"..7 7 a a It 1 I 1 / I cc (/ 1 1 i ��� , \ 1 ) I \\ \\/ S c vr rt l 0 "-Is*,.....a?...:Th b 1 v J li 0 O N 1H ° \ 0 1 `� 0 0 m 0 Lu 1 \ J �� O f o z o_ a ta Ut j W \ /. ........ 1 _( ° ° . _ �`�- N a g Atte: i te 1 0 \ ���� /r �` o ou_LLjE- z LIJ 1 \ I � � it, CN J • 0 • � / / G o U p 0 0 N 0 4 ,--/ /\� , e U z 1 Attachment 3 LEGAL DESCRIPTION Nonsignificant Zoning Change Request at Mauna Lani Resort DESCRIPTION Parcel 1 From V-1.25 Zoning to RM-4 Zoning Being a portion of Royal Patent 7523, Land Commission Award 4452, Apana 4 to H. Kalama Being, also, all of Lots 3 to 11, inclusive, 34 to 48, inclusive, 52 and 55 and portions of Lots 12, 13, 20, 21, 32, 33, 49, 50, 53, and 54 of 49 Black Sand Beach (File Plan 2246) Situated at Anaehoomalu, South Kohala, Island of Hawaii, Hawaii Beginning at the East corner of this parcel of land, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU HINAI" being 11,226.92 feet North and 33,239.15 feet West, thence running by azimuths measured clockwise from True South: 1. 62° 20' 33.12 feet along Lot 3 of Mauna Lani Resort South Course Subdivision (File Plan 2199); 2. 50° 18' 447.73 feet along Lot 3 of Mauna Lani Resort South Course Subdivision (File Plan 2199); 3. 9° 25' 88.00 feet along Lot 3 of Mauna Lani Resort South Course Subdivision (File Plan 2199); 4. 54° 44' 131.00 feet along Lot 3 of Mauna Lani Resort South Course Subdivision (File Plan 2199); 5. 100° 41' 112.00 feet along Lot 3 of Mauna Lani Resort South Course Subdivision (File Plan 2199); 6. 83° 28' 133.23 feet along Lot 3 of Mauna Lani Resort South Course Subdivision (File Plan 2199); 7. 93° 10' 530.00 feet along Lot 3 of Mauna Lani Resort South Course Subdivision (File Plan 2199); 8. 68° 51' 89.00 feet along Lot 3 of Mauna Lani Resort South Course Subdivision (File Plan 2199); 9. 39° 17' 114.00 feet along Lot 3 of Mauna Lani Resort South Course Subdivision (File Plan 2199); 1 10. 115° 22' 125.00 feet along Lot 3 of Mauna Lani Resort South Course Subdivision (File Plan 2199); 11. 177° 35' 34.00 feet along Lot 3 of Mauna Lani Resort South Course Subdivision (File Plan 2199); 12. 145° 32' 99.00 feet along Lot 3 of Mauna Lani Resort South Course Subdivision (File Plan 2199); 13. 94° 44' 214.00 feet along Lot 3 of Mauna Lani Resort South Course Subdivision (File Plan 2199); 14. 138° 09' 179.00 feet along Lot 3 of Mauna Lani Resort South Course Subdivision (File Plan 2199) and the remainder of Lot 49 of 49 Black Sand Beach (File Plan 2246); 15. 194° 48' 131.80 feet along the remainder of Lot 49 of 49 Black Sand Beach (File Plan 2246); 16. 172° 16' 116.57 feet along the remainders of Lots 49, 50 and 53 of 49 Black Sand Beach (File Plan 2246); 17. 299° 35' 93.21 feet along Lot 51 of 49 Black Sand Beach (File Plan 2246); 18. 173° 00' 271.83 feet along Lot 51 of 49 Black Sand Beach (File Plan 2246); Thence along Highwater Mark at Shoreline as of June 4, 1980 for the next nine (9) courses, the direct azimuths and distances between points being: 19. 274° 15' 225.66 feet; 20. 226° 09' 50" 19.86 feet; 21. 227° 04' 257.00 feet; 22. 336° 59' 149.00 feet; 23. 270° 23' 50" 90.70 feet; 24. 243° 42' 25" 262.55 feet; 25. 198° 18' 40" 196.97 feet; 26. 234° 18' 40" 77.91 feet; 27. 272° 44' 108.00 feet; 28. 251 ° 00' 89.24 feet along the remainder of Lot 13 of 49 Black Sand Beach (File Plan 2246); 29. 318° 59' 245.96 feet along the remainders of Lots 13 and 12 of 49 Black Sand Beach (File Plan 2246); 2 30. 308° 55' 730.60 feet along the remainders of Lots 12, 54, 20, 32, 21, 53 and 33 of 49 Black Sand Beach (File Plan 2246) to the point of beginning and containing an Area of 31.003 Acres. Vq 04C.; CUyN~~IN 680 Ala Moana Boulevard O LICENSED 9 BELT COLLINS HAWAII LTD. PROFESSIONAL First Floor LAND Honolulu, Hawaii 96813 SURVEYOR * v * No. 418a April 12, 2000 -y p Licensed Professional Land ur yor glVq(I U 5 Certificate Number 4188 3 DESCRIPTION Parcel 2 From V-1.25 Zoning to RM-4 Zoning Being a portion of Royal Patent 7523, Land Commission Award 4452, Apana 4 to H. Kalama Being, also, portions of Lots 1 and 2 of 49 Black Sand Beach (File Plan 2246) Situated at Anaehoomalu, South Kohala, Island of Hawaii, Hawaii Beginning at the South corner of this parcel of land, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU HINAI" being 11,277.43 feet North and 35,757.40 feet West, thence running by azimuths measured clockwise from True South: 1. 163° 49' 108.00 feet along Lot 3 of Mauna Lani Resort South Course Subdivision (File Plan 2199); 2. 249° 15' 64.00 feet along Lot 3 of Mauna Lani Resort South Course Subdivision (File Plan 2199); 3. 222° 03' 77.00 feet along Lot 3 of Mauna Lani Resort South Course Subdivision (File Plan 2199); 4. 199° 29' 63.00 feet along Lot 3 of Mauna Lani Resort South Course Subdivision (File Plan 2199); 5. 175° 50' 50.00 feet along Lot 3 of Mauna Lani Resort South Course Subdivision (File Plan 2199); 6. 165° 27' 45.88 feet along Lot 3 of Mauna Lani Resort South Course Subdivision (File Plan 2199); 7. 266° 10' 162.79 feet along the remainder of Lot 2 of 49 Black Sand Beach (File Plan 2246); 8. 331 ° 55' 158.00 feet along the remainder of Lot 2 of 49 Black Sand Beach (File Plan 2246); 9. 38° 02' 162.62 feet along the remainders of Lots 2 and 1 of 49 Black Sand Beach (File Plan 2246); 1 10. 70° 11' 237.87 feet along the remainder of Lot 1 of 49 Black Sand Beach (File Plan 2246) to the point of beginning and containing an Area of 1.516 Acres. cu 680 Ala Moana Boulevard y BELT COLLINS HAWAII LTD. First Floor O LICENSED y ¢ PROFESSIONAL ~ Honolulu, Hawaii 96813 LAND April 12, 2000 * No. 1 * Licensed Professional Land St rve or Q Certificate Number 4188 y~wAll, U 2 E3 t J C - 1 I I t 1 [__ I I 1 1 1 - I -1 i -- - - -,, I; UU2C/LISWV[YVORILS%RXO,tl1 -SKIP n i 1 e. I - 1 G S it , y rl to 13 IS ea la 'K'j o se0 d Xa eag e al w `�' 2 40 v ~ C I.-- A4 �":, o a C, w . c CP -'"I' n o r p0 WW., e ZN - a r a b co 4- C 1 s d - m 13803'_ �� * it, r //? $.a e$ 09 a d' Y x C ` 4� 8 $ Ili _ $ $ s So en v ' toq . 1 ` V 92 ri2 rt —I e m co a {6 s cot r ---,fro .• % • • 8 O N " O C 3 4ti Wf �i,tt, _ r Z n f mod' E I u °; a N ^' ose ii P • ' n Z o W ` / E r .--. • I M 1-I i N 5 / Do G7 4 N> a a s rn ' r $ $ a -4 o O u _ .4,„ o r ., � � __� u = .. • CU ti r 1$ N N' A M 8 zo l at% r JgoL A. Vii' �k it E m® CI .1-.1 N N r D ..... ... -- .. T 31e. p9'ML G 4 ' ‘ u ® .. �� _. S .1111. in It g as a. r k ROa�e L_ , G p q � y 0 °it o r CO r A o y �. r to Z V V IT \ n. u = an?a0 nN4ueN VpnaS D F . i a H „, .z. e, . _. 't k *4 A ; ik • .. , .iy' , 4‘ _ _ -- ,�• '3 "�" fir m a ' DESCRIPTION Parcel 3 From RM-4 Zoning to V-1.25 Zoning Being a portion of Royal Patent 5671, Land Commission Award 8521-B, Apana 1 to G.D. Hueu Being, also, a portion of Lot 1 of Mauna Lani Resort North Course Subdivision No. 1 (File Plan 2200) Situated at Waikoloa, South Kohala, Island of Hawaii, Hawaii Beginning at the South corner of this parcel of land, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU HINAI" being 15,595.82 feet North and 25,203.27 feet West, thence running by azimuths measured clockwise from True South: 1. 145° 19' 628.59 feet along the remainder of Lot 1 of Mauna Lani Resort North Course Subdivision No. 1 (File Plan 2200); 2. 228° 29' 78.25 feet along Lot 4 of Mauna Lani Resort North Course Subdivision No. 1 (File Plan 2200); 3. 218° 45' 301.01 feet along Lot 4 of Mauna Lani Resort North Course Subdivision No. 1 (File Plan 2200); 4. 266° 28' 253.00 feet along Lot 4 of Mauna Lani Resort North Course Subdivision No. 1 (File Plan 2200); 5. 240° 22' 602.00 feet along Lot 4 of Mauna Lani Resort North Course Subdivision No. 1 (File Plan 2200); 6. 226° 29' 513.64 feet along Lot 4 of Mauna Lani Resort North Course Subdivision No. 1 (File Plan 2200); 7. 205° 48' 222.42 feet along Lot 4 of Mauna Lani Resort North Course Subdivision No. 1 (File Plan 2200); 8. 224° 45' 153.01 feet along Lot A of Mauna Lani Resort North Course Subdivision No. 3 (File Plan 2251); 9. 261 ° 12' 209.00 feet along Lot A of Mauna Lani Resort North Course Subdivision No. 3 (File Plan 2251); 1 10. 324° 30' 668.50 feet along Lot A of Mauna Lani Resort North Course Subdivision No. 3 (File Plan 2251); 11. 54° 30' 77.88 feet along Lot 5 of Mauna Lani Resort - Phase V, Parts A and B (File Plan 2100); 12. Thence along Lot 5 of Mauna Lani Resort - Phase V, Parts A and B (File Plan 2100), on a curve to the right with a radius of 1,350.00 feet, the chord azimuth and distance being: 56° 15' 82.45 feet; 13. 58° 00' 225.44 feet along Lot 5 of Mauna Lani Resort - Phase V, Parts A and B (File Plan 2100); 14. Thence along Lot 5 of Mauna Lani Resort - Phase V, Parts A and B (File Plan 2100), on a curve to the left with a radius of 1,550.00 feet, the chord azimuth and distance being: 54° 02' 30" 214.00 feet; 15. 50° 05' 371.33 feet along Lot 5 of Mauna Lani Resort - Phase V, Parts A and B (File Plan 2100); 16. Thence along Lot 5 of Mauna Lani Resort - Phase V, Parts A and B (File Plan 2100), on a curve to the right with a radius of 950.00 feet, the chord azimuth and distance being: 54° 59' 30" 162.57 feet; 17. 59° 54' 279.06 feet along Lot 5 of Mauna Lani Resort - Phase V, Parts A and B (File Plan 2100); 18. Thence along Lot 5 of Mauna Lani Resort - Phase V, Parts A and B (File Plan 2100), on a curve to the left with a radius of 3,050.00 feet, the chord azimuth and distance being: 57° 36' 30" 243.92 feet; 19. 55° 19' 577.79 feet along Lot 5 of Mauna Lani Resort - Phase V, Parts A and B (File Plan 2100) to the point of beginning and containing an Area of 32.519 Acres. v4 CUiyN~L 680 Ala Moana Boulevard p LICENSED 7 BELT COLLINS HAWAII LTD. First Floor ¢ PROFESSIONAL 2- Honolulu, Hawaii 96813 LAND SURVEYORz/~~~ April 12, 2000 * No, 4188 * Licensed Professional Land Sur~yor y~wAll U g 4 Certificate Number 4188 2 Lot A Mauna Lani Resort North Course Subdivision No. 3 (File Plan 2251) Existing RM-4 153.015 L6~Og0 3?y (0.105 Ac.) tp -A Open N~ Sy+.~~ ssd 205'48' \p Sp r A 222.42 ~ ` 3so RS . 54'30' a ~o' ^ Ve, ! 77.88 Op ,YoO 1h c`ryhdd00 F X00;' N C41 OQOC ryry `SRO V0000~ ~ , ?,j0,~`, °`~a 2~ ~~ry~ s f R ~SSO~o ?1400 Q1 f , JAS9; ~ •Oh ,p ~6?SJ~: , y0 Qeyo,~ tiR, S R°¢ PARCEL 3 RN-4 t0 V-1.25 Lot 5 of Mauna Lani Resort 16 Phase V. Parts A and B a0o 662a 32.519 Ac. (File Plan 2100) 17.530 ti~hb P h o h CU 228'29' 78.25 N ac~ 2v~\ ?4J s30•\ LICENSED /yam y,° R 9? PROFESSIONAL Josd-1 K LAND 4S 9 \~aJJ°ac * SURVE`(OR No. 4188 y P' Qua ~ oCye 6? S\ h`' ~K'/a 1 I. V5 V tee, 9 This work was prepared by N 0Z' me or under my supervision m 4y ti c~ z PROPOSED ZONING CHANGE At Mauna Lani Resort Being a portion of R.P. 5671, L.C. Aw. 85214, Apana i to B.D. Hueu r Being, also, a portion of Lot i of Mauna Lani Resort w North Course Subdivision No. i (File Plan 2200) At Waikoloa, South Kohala, Island of Hawaii, Hawaii NOTE Tax Map Key 8-8-22: por. 10 Coordinates and azimuths referred to 'PUU HINAI' A April 12, 2000 Job No. 9849.0500 8 1/2" x 11' Attachment 4 NOTIFICATION LIST AND MAPS Nonsignificant Zoning Change Request at Mauna Lani Resort Attachment 4 NOTIFICATION LIST AND MAPS Nonsignificant Zoning Change Request at Mauna Lani Resort TAX MAP KEY NAMES AND ADDRESSES 6-8-01: 22 Tokyu Corporation c/o Mauna Lani Service, Inc. 68-1310 Mauna Lani Drive, #101 Kamuela, HI 96743-9704 52 Tokyu Corporation c/o Mauna Lani Service, Inc. 68-1310 Mauna Lani Drive, #101 Kamuela, HI 96743-9704 53 Mauna Lani Service, Inc. 68-1310 Mauna Lani Drive, #101 Kamuela, HI 96743-9704 54 Tokyu Corporation c/o Mauna Lani Service, Inc. 68-1310 Mauna Lani Drive, #101 Kamuela, HI 96743-9704 6-8-22: 01 Mauna Lani Resort (Operation) 68-1400 Mauna Lani Drive, #102 Kamuela, HI 96743-9704 04 Tokyu Corporation c/o Mauna Lani Service, Inc. 68-1310 Mauna Lani Drive, #101 Kamuela, HI 96743-9704 07 Tokyu Corporation c/o Mauna Lani Service, Inc. 68-1310 Mauna Lani Drive, 9101 Kamuela, HI 96743-9704 24 Mauna Lani Resort (Operation) 68-1400 Mauna Lani Drive, #102 Kamuela, HI 96743-9704 27 Mauna Lani Resort (Operation) 68-1400 Mauna Lani Drive, #102 Kamuela, HI 96 743-9 704 29 Mauna Lani Service, Inc. 68-1310 Mauna Lani Drive, #101 Kamuela, HI 96743-9704 30 Mauna Lani Service, Inc. 68-1310 Mauna Lani Drive, #101 Kamuela, HI 96743-9704 1 TAX MAP KEY NAMES AND ADDRESSES 31 Mauna Lani Service, Inc. 68-1310 Mauna Lani Drive, #101 Kamuela, HI 96743-9704 33 Mauna Lani Resort (Operation) 68-1400 Mauna Lani Drive, #102 Kamuela, HI 96743-9704 39 Mauna Lani Resort (Operation) 68-1400 Mauna Lani Drive, #102 Kamuela, HI 96743-9704 40 Tokyu Corporation c/o Mauna Lani Service, Inc. 68-1310 Mauna Lani Drive, #101 Kamuela, HI 96743-9704 42 Mauna Lani Resort (Operation) 68-1400 Mauna Lani Drive, #102 Kamuela, HI 96743-9704 6-8-33: 14 14A at Ke One'Ele'Ele LLC Lashlee, Hal c/o Steve Hurwitz 65-1227 Opelo Kamuela, HI 96743 16 16A at Ke One'ele'ele LLC Lashlee, Hal c/o Steve Hurwitz 65-1227 Opelo Kamuela, HI 96743 17 Starmont Financial Pinn, David R. c/o Pin Brothers Const 1475 Saratoga, Suite 250 San Jose, CA 95129 18 Larsen, Terrace A./Marilyn R. 1344 Sugartown Road Berywn, PA 19312 19 Naylor, John P. /Cheri C. TR Naylor, John/Cheri P.O. Box 716 Kirkland, WA 98083 22 Sea Cliff Development, LLC 810 Richards Street, Suite 900 Honolulu, HI 96813 23 Lowthian, Wilfred/Sheila 15782 Virginia Pt. Road, NE Poulsbo, WA 98370 2 TAX MAP KEY NAMES AND ADDRESSES 24 Sea Cliff Development, LLC c/o McDowell, Donald Sr./Arlene 7027 Valley Greens Circle Carmel, CA 93923 25 Davies, Trust Davies, Clive 1176 St. Anthony Ct. Los Altos, CA 94024 26 Fluegel Trust c/o Fluegel, Frederick TTEES 225 Park Lane Atherton, CA 94027 27 Olson, Bruce W. /Molly J. P.O. Box 1518 Tahoe City, CA 96145 28 Sea Cliff Development, LLC 810 Richards Street, Suite 900 Honolulu, HI 96813 29 Quarterdeck Equity Partners c/o Kutler, Jon B. 890 Moraga Drive Los Angeles, CA 90049 30 Grindon, Michael FamilyTR c/o Grindon, Michael E M/M 1146 Galloway Street Pacific Palisades, CA 90272 31 Sea Cliff Development, LLC 810 Richards Street, Suite 900 Honolulu, HI 96813 51 Sea Cliff Development, LLC 810 Richards Street, Suite 900 Honolulu, HI 96813 3 ' 4 • • 9849,0500/002 -] k5/30/00 y A O 1 i t \\,..1., 1 at, 1 I •— o a) A c co c e \ I j 3 5e7/ CDS N mo 111 5 ° ee f pi ' y� to - 1' stag m 0n03 I " / i ;, x c @ C T Ai p M o n { C o N m ° .. 1 fi Y U d / - a C r e i 65 Z S m CC C0 J ro i . I 0 ' m o .: f 1 PI i ; ie; 6 e ° / 4 04 �� I .., i is \ 4 0:e . . - 0 -., .- 'r . , n, e \ v �} I -. ct\ ,e;r-): k 1 \ jil o t e V LU cg w ' eR ID k °� Z 1 N vim\ Irl ,•-)."- •i _1 1 ' _ " gip - era z O _p .� a 9849 0500/002-6 k5/30/00 rm� N y ro o 8 O\ p { Q (V N j i o I & To d • H � 4 © 109 C = �• g',.,.-- ' I pv 0 - .. S i t Y .0 I / b - s gg t . a ( r O y , g `.• . - ` c � v m ti � J S '.c: 5 0 CO T 6 T N. cu 2 1 F , e e) \ ET IL N is i ' ' ti S' ea / a p O in 7-4 .:W. 11,\\ 0 ..... qM ol 1 Z CC ro M 8 t ' a ��:. . 17 & . a/1 � ` "e o ; a 1 ■;l! qty / n a.,- au 't —4 AI s I 1 1' , i ia3t ",�1 6 °1xl a n^ Est �� � sV `� �`li a' / t� je ...----) 1 ill p `�, t + . Y �i 0, ,: s+5, 10 0. k b % , : ' € ' h i 9 ,�,-i l � \ \0I q 3 t / P N i 1 ® I • a 0 5� e it kIlT r»t i :\ tam" \,I . g �1I 1 k o i 0� • — S -I, Ill l ° \ , q q9 k t it V iOe i t. I t > oa d_, 1 1/4 q q ° ! m I :-;47,:,:::- ^ q - a l k 2 gi p tt Y .� • m P ,P3 1 ' SO V is 1 $$2 i 1 l \ I =HI 5# \ g U k I P 4 q J f Je 1 m 1 �f O P 1 P " �kRe4 • Lo C C 1 w 1 q 'A' 4. o a 7 r '''' >- '^h Z {ft y E I W \ gnu M Q 1 ....,, \ 1 ® I E I 3 0 Z 1 _ en , r 9849.060a002 5 k5/30/00 • • M 0 'm : f M i 3i°�z C - ■ ■ p, 6 so U Ia a 00 T W Y t a 5 .I R I U �2 c X o a CO N y U 1— c m s.s. 1,4101111° _ U d i est in • St H ' � Or . ll 'U co / a cd a. / pi g i RI i in E it O k a <O� a FI 1 ' " n! -1 a cc o ' qs �•.r '•, RI ® Y 0 al 1 0 5 ‘1. \ .O 'O te r • i * ', i ' _ rm S J !9 ® j 1 W '. o ,O 1 A po ,0 '� I '' ' s lp 0 ... � O , A w I O I r , � .` ` +r ` r,l p$ r,, O / 71 Q O M 6 ir, ® I e a '✓ J r Y xO it a J J IIK._. S. ' ..r< ., •vwE .w u K., ., un vro w ew Attachment 5 TAX CLEARANCES Nonsignificant Zoning Change Request at Mauna Lani Resort p,rSY os Stephen K. Yamashiro Harry A. Takahashi Mayor Director S.K. Schutte Deputy County of Hawaii DEPARTMENT OF FINANCE - REAL PROPERTY TAX 865 Piilani Street Hilo, Hawaii 96720-4679 • Fax (808) 961-8415 Appraisers (808) 961-8354 • Clerical (808) 961-8201 • Collecdons (808) 961-8282 REAL PROPERTY TAX CLEARANCE (rev. 07/99) April 11, 2000 TMK(s): (3)6-8-022-010-0000 Tokyo Land Corp (3)6-8-033-001-0000 Gruber Family Investment Partnership (3)6-8-033-002-0000 Bruggere, Thomas/Kelley (3)6-8-033-003-0000 Wall Investment Assoc. (3)6-8-033-004-0000 Calella Family Partners (3)6-8-033-005-0000 Saratoga Partners (3)6-8-033-006-0000 Morris Trust No.2 (3)6-8-033-007-0000 Sea Cliff Development LLC (3)6-8-033-008-0000 Sea Cliff Development LLC (3)6-8-033-009-0000 Webster, Ranson/Norma (3)6-8-033-010-0000 Sea Cliff Development LLC (3)6-8-033-011-0000 Dougery Trust (3)6-8-033-012-0000 Sea Cliff Development LLC (3)6-8-033-013-0000 Wentzel,Dan/Gloria (3)6-8-033-020-0000 Sea Cliff Development LLC (3)6-8-033-021-0000 Sea Cliff Development LLC (3)6-8-033-033-0000 Sea Cliff Development LLC (3)6-8-033-034-0000 Sea Cliff Development LLC CONTINUED NEXT PAGE This is to certify that the real property taxes due to the County of Hawaii on the parcel(s) listed above have been paid up to and including June 30,2000. This clearance was requested on behalf of Belt Collins Hawaii for the County Planning Department and is issued for this/these par el(s) only. By R.Gi bert REAL PROPERTY TAX DIVISION Stephen K. Yamashiro Harry A. Takahashi Mayor Director ~ S.K.Schutte • oi'iri+ Depary County of Hawaii DEPARTMENT OF FINANCE - REAL PROPERTY TAX 865 Piilani Street • Hilo, Hawaii 96720-4679 • Fax (808) 961-8415 Appraisers (808) 961-8354 • Clerical (808) 961-8201 • Collections (808) 961-8282 REAL PROPERTY TAX CLEARANCE (rev. 07/99) April 11,2000 continued page 2 TMK(s): (3)6-8-033-035-0000 Sea Cliff Development LLC (3)6-8-033-036-0000 Sea Cliff Development LLC (3)6-8-033-037-0000 Sea Cliff Development LLC (3)6-8-033-038-0000 Sea Cliff Development LLC (3)6-8-033-039-0000 Sea Cliff Development LLC (3)6-8-033-040-0000 Sea Cliff Development LLC (3)6-8-033-041-0000 Sea Cliff Development LLC (3)6-8-033-042-0000 Sea Cliff Development LLC (3)6-8-033-043-0000 Sea Cliff Development LLC (3)6-8-033-044-0000 Sea Cliff Development LLC (3)6-8-033-045-0000 Sea Cliff Development LLC (3)6-8-033-046-0000 Sea Cliff Development LLC (3)6-8-033-047-0000 Sea Cliff Development LLC (3)6-8-033-048-0000 Green, Richard/Barbara (3)6-8-033-049-0000 Borkan, Bill (3)6-8-033-050-0000 Sea Cliff Development LLC (3)6-8-033-052-0000 Sea Cliff Development LLC (3)6-8-033-053-0000 Sea Cliff Development LLC This is to certify that the real property taxes due to the County of Hawaii on the parcel(s) listed above have been paid up to and including June 30, 2000. This clearance was requested on behalf of Belt Collins Hawaii for the County Planning Department and is issued for this/these parcel(s) only. By R.Gi bert REAL PROPERTY TAX DIVISION Stephm K Yamashiro HwTY A. Tai W=W sfnyror Dtrecror S.K.Schutte Dmody County of Hawaii DEPARTMENT OF FINANCE - REAL PROPERTY TAR 863 Pidani SbW • Hao. Hawau %7204679 • Fm(808)961441S Appnia (808) %1.8354 • Clmicd (808) %1-8201 • Callacdan (808) %1-8282 REAL PROPERTY TAX CLEARANCE (Rev. 07/99) June 7, 2000 TMK(s): 6-8-033-032-0000 Owner on record: Sea Cliff Development LLC This is to certify that the real property taxes due to the County of Hawaii on the parcel(s) listed above have been paid up to and including June 30, 2000. This clearance was requested on behalf of Mr. Ed Kunivoshi of Belt Collins for the County Planning Department and is issued for the above referenced parcel(s) only. B Toni Ann Shimasaki, Tax Clerk REAL PROPERTY TAX DIVISION