HomeMy WebLinkAboutCOM 0199.002 2002-2004 4~JN<V Os M,,1..+.
Harry Kim Christopher J. Yuen
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PLANNING DEPARTMENT
l0l Pauahi Su'eet, Suite 3 Hilo, Hawaii 96720-3043
February 19, 2004 (808) 961-8288 • Fax (808) 961-8742
Mr. Robert Stuit
1250 Oceanside Partners
78-6831 Alii Drive #K15
Kailua-Kona, HI 96740-2440
Deaz Mr. Stuit:
Development Agreement No. 1
Change of Zone Ordinance No. 96-7 (REZ 812)
Change of Zone Ordinance No. 96-8, amended Ord. No. 94-73 (REZ 765)
Applicant: 1250 Oceanside Partners
Subject: 2004 Annual Progress Reports
Tax Map Key: 7-9-012:011, por 003 & 004; 8-1-004: Portion of 003
This is to acknowledge receipt of your detailed annual progress report dated January 14, 2004 as
required under the above referenced rezoning ordinances. We appreciate the thoroughness of
your reports.
Thank you for your attention to this matter. The report will be forwarded to the County Council
and the Planning Commission for their reference. We look forward to the submittal of your next
annual progress report on or before Januazy 15, 2005.
In the meantime, please feel free to contact Norman Hayashi or Jeff Darrow of our office at 961-
8288 should you have any questions.
Sincerely, -
.
CHRISTOPHER J. YIJEN
Planning Director
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P:\WPWM60VEi'F\Le~ rs\Annual Reports\LOceanside1250-APR-REZ812&765-SMA356-doe
xc w/report: ?County Council
Planning Commission
Planning Dept. -Kona
Comm. No. • 2
Ref. To:_
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January 14, 2004 i.. ~
Mr. Christopher J. Yuen, Planning Director
County of Hawaii Planning Department
Aupuni Center
101 Pauahi Street, Suite 3
Hilo, Ilawaii 96720
ATTENTION: NORMAN HAYASHI
Subject: 2004 Annual Reports
Development Agreement No. 1
Change of Zone Ordinance No. 96-7 ,L ~/l~
Change of Zone Ordinance No. 96-.8~~ •-~krr~
Special Management Area Use Permit No. 356
Dear Mr. Yuen:
I am pleased to submit the following annual reports far Development Agreement No. 1
('`Agreement") by and between the County of Hawaii ("County') and Oceanside 1250
("Oceanside"); in accordance with Item 24 of said Agreement, Condition No. R of Change of
lone Ordinance No. 96-7, Condition No. V of Change of Zone Ordinance No. 96-8 and
Condition Nu. 13 of Special Management Area Use Permit No. 356. This letter is intended to
supplement the prior annual reports. To that extent we wi!! attempt not to simply repeat the
issues addressed n our prior reports regarding the legal status of the project. However, if there
are any issues which you believe are not covered within the attachments, please de not hesitate to
contact me so that we can fill in any perceived gaps with this report. It is intended to comply
with the requtrements under the Development Agreement.
As you are aware, in April of 1998, Oceanside ]250 and the Hawaii County entered a
Development Agreement to specifically identify the obligations of Oceanside, to provide a
mechanism to give assurance to the County and public that these obligations are being met in a
timely manner', to provide assurances to Oceanside that it may complete full development of the
Hokukano Project ("Protect") and the Mamalahoa Highway Bypass (`Bypass"), to allow
Oceanside and the County to enter a reimbursement agreement for costs associated with the
Bypass and to reduce or eli^tiuate uncertainty in the responsibilities of Oceanside and the County
relating to the development of the Project and the $ypass. The scope and parpose of the
Development Agreement is consistent with Ordinance ~3-37, the Development Agreement Code
and Bule 1, which implements procedures for the application, preparation and administration of
Mr. Christopher J. Yuen, Planning Director
January 20, 2004
Page 2 of 4
development agreements as provided by Ordinance 93-37. The Development Agreement was
executed and approved by the Mayor on Apri120, 1998.
Golf Course:
The Golf Course was opened in July of 2002. Detailed compliance with the conditions of
approval of Use Permit No. 115 and SMA Permit No. 345 for the golf course will be provided in
the 2003 annual reports for these permits October of 2003. In the recent litigation in the Third
Circuit the Court confirmed that the golf course was a permitted use in the agricultural district
and has allowed the golf course to remain open, as such we will continue to monitor the golf
course.
Mamalahoa Highway Bypass:
The Mamalahoa Highway Bypass was in part, designed to address existing traffic conditions in
the area and to provide an alternative route for interregional traffic between North and South
Kona in support of the County's long-range traffic plan. The Draft Environmental Impact
Statement Final Environmental Impact Statement (DEI and FEIS) were both approved and
accepted by Department of Public Works. Construction of the Bypass Highway was commenced
in January 2001 and continued during the past year. However, the Third Circuit Court in
September, 2003, ruled that the entire project did not conform to the requirements contained in
Chapter 205 of the Hawaii Revised Statutes and all construction of the Bypass Highway has been
halted, pending the resolution of the land use litigation.
Coastline Park:
Oceanside obtained approval of the Public Access and Shoreline Management Plan on January
29, 1999. This plan addresses the public access areas, perpetual access covenants, azchaeology,
marine resources and related improvement measures. Details of the provisions for historical sites
were developed and will be implemented as part of the comprehensive archaeological mitigation
plan that was approved by SHPD on September 7, 1999 and September 15, 1999. We are in the
process of completing an Archaeology Inventory Survey for the State Parcel at Hokukano
Village.
In addition, Oceanside obtained approval of both the CDUA HA-2977 and SMA Permit No. 401
that outline the proposed facilities to be developed in the Coastline Park. We are in the process
of preparing the necessary documents as required and anticipate the preparation of construction
plans as required by the conditions of approval of both permits to ensure that they are complied
with. The first phase of the coastline park with the required public parking stalls was opened on
August 1, 2002. The Court in the Third Circuit litigation has allowed continued development of
Mr. Christopher J. Yuen, Planning Director
January 20, 2004
Page 3 of 4
the coastline park, but has ruled that the entire project require Land Commission approval. To
that extent no new construction will be conducted on the Coastline Park pending the resolution
of the land use litigation.
Members' Lodge:
1250 Oceanside has conducted various architectural and planning studies for the lodge facilities,
its development, phasing and scheduling. SMA Permit No. 403 for the facility was approved by
the Planning Commission on May 5th, 2000. In December of 2001, we submitted an application
for Final Plan Approval to the Planning Department. An administrative time extension was
granted by the Planning Director on Februazy 18, 2002, to comply with all conditions of
approval of Change of Zone Ordinance No. 97-36 by March 13, 2007. However, the Member's
Lodge is the subject of on-going litigation. At this time, the Circuit Court has ruled that the
zoning is invalid as "spot zoning" and has invalidated the underlying Ordinance. Oceanside does
not agree with the court's ruling and intends to appeal to the Hawaii Supreme Court at the
appropriate time.
Archaeology:
Oceanside obtained approval from SHPD on September 7, 1999 and September 15, 1999 of the
Archaeological Mitigation Plan that includes a data recovery plan, an interim
protection preservation plan, interpretive plan and a monitoring plan. We aze currently in the
process of preparing the final Preservation Plan in consultation with DLNR and Hawaiian
community organizations. As required by the terms of the land use entitlements for the Project,
approved mitigation measures are being implemented prior to or in conjunction with land
alteration activities on the property. 1n addition, the Circuit Court ordered Oceanside to submit
another Burial Treatment Plan to the Hawaii Island Burial Council relating to a number of
"inadvertent" burial sites discovered during archaeological monitoring "sweeps" of the property.
While Oceanside does not agree with the court's ruling and intends to appeal, on January 16,
2003 Oceanside submitted the new Burial Treatment Plan as ordered.
Subdivision:
Phase 1 subdivision improvements are currently under construction including all of the
underground utilities and roadway improvements. On December 1, 2000, the County issued
Final Subdivision approval for Phase 2 that includes 98 lots plus roadways and easements for the
second increment of residential/agricultural lots in the project. In September, 2003, the Third
Circuit Wiled that the entire project as it was then constituted required land use commission
approval. The subdivision ordinances were not deemed to be void by the Court and presumably
are still in full force and effect. To the extent that the Court's ruling on the land use creates an
Mr. Christopher J. Yuen, Planning Director
7anuary 20, 2004
Page 4 of 4
ambiguity as to the current status of the subdivision and the subdivided lots, Oceanside disagrees
and intends to appeal.
Other Items:
There are no other items to report that affect the status of the Project or the Bypass as it relates to
the teens of the ordinances. However, as you are aware the Third Circuit Court has ruled that
the project does not now and must in the future comply with Chapter 205 of the Hawaii Revised
Statutes. Oceanside 1250 intends to meet all of the terms and comply with all of the conditions
that are specified within each ordinance and the Agreement. However, with the current status of
the Court rulings resulting from the orders and judgments issued in the land use litigation in the
Third Circuit, there is a limited ability on the part of Oceanside 1250 to ensure that all of the
conditions set forth in the ordinances and Agreement are met in a timely manner. Oceanside
1250 will attempt to use all of its energies and resources to meet any and all of the requirements
set forth in the ordinances and the Agreement with the County. If Oceanside 1250 recognizes,
from time to time, that certain challenges exist to prevent the full satisfaction of any of the terms
and conditions of the ordinances or Agreement, we will notify you in advance so we can come to
a mutual resolution of any such potential challenges. To date however, we believe that this letter
and the actions described herein constitute full compliance with all of the terms and conditions
contained in the ordinances and Agreement and that Oceanside 1250 is in good standing under
its obligations.
For your reference, we have attached matrix charts for Development Agreement No. 1, Change
of Zone Ordinance No. 96-7, Change of Zone Ordinance 96-8 and Special Management Area
Use Permit No. 356 that indicate the status and compliance for each condition for the
Development Agreement, the two change of zone ordinances and the SMA permit.
I trust the above provides a useful description of the status of development and compliance with
the conditions of approval for the ordinances. Should you have any questions regarding this
report, or if you require further information regarding the Project, please contact me at (808)
324-4212.
Sincer~
Robert A. Stuit
Vice President of Development
Attachments
Cc: County of Hawaii Planning Department, Kailua-Kona Branch
~h
Hokuli'a ~ '
Development Agreement (Effective Date: April 20, 1998)
TMK: 7-9-012: 003, 004, Oll and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 1 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
Paragraph No. 1 The recitals hereinabovz are incorporated herein Hokuli'a will comply with this requiremenL~
by this reference and made a part of this
agreement as though set forth in full herein.
Paragraph No. 2 Whenever, used in this Agreement, the terms Hokuli'a will comply with this requirement.
Definitions defined below shall have the following meanings:
a. AGREEMENT. "Agreement shall mean this
Development Agreement entered into by the
COUNTY and OCEANSIDE, approved by the
County Council through the enacting resolution,
and executed by the Mayor on behalf of
COUNTY."
b. APPLICATION. "Applicatiod' shall mean
the application for this Agreement submitted by
OCEANSIDE to the Planning Department.
c. APPRAISER. "Appraiser" shall mean an
unbiased appraiser, licensed and certified in the
State of Hawaii and appointed as provided herein.
d. APPROVALS. "Approvals" shall mean any
and all permits or approvals which have been or
will be received by OCEANS[DE for the Project
from the County, the state, or any other
governmental or quasi-govemmental agency
pursuant to any Land Use Regulations as of the
date of this Agreement, including, without
limitation:
Page 1
Hokuli' a
Development Agreement (Effective Date: April 20, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 2 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
(I) Change of Zone Approval (REZ 93-5),
accepted by the County Council on June 15, 1994
as Bill 182, Draft 6 and signed into law by the
Mayor on June 28, 1994 as Ordinance No. 94-73,
attached as Exhibi[ "S"; and amended and
superseded by Bill 181, Drafr 6 accepted by the
County Council on January 3, 1996, and signed
into law by the Mayor on January 15, 1996 as
Ordinance No. 96-8 attached hereto as Exhibit
"B" and incorporated herein by this reference.
(2) Change of Zone Approval (REZ 95-12)
accepted by the County Council on January 3,
1996 as Bill 158, Draft 5, and signed into law by
the Mayor on January 15, 1996 as Ordinance No.
96-7 attached hereto as Exhibit "C" and
incorporated herein by this reference.
(3) Special Management Area Use Permit
Approval (SMA 93-1) granted by the Planning
Commission on November 5, 1993 (SMA 345)
attached hereto as Exhibit "D" and incorporated
herein by reference.
(4) Use Permit Approval (USE 93-2) granted
by the Planning Commission on November 5,
1993 (Use Permit No. I IS) attached hereto as
Exhibit "E" and incorporated herein by this
_ reference.
Page 2
Hokuli'a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 3 of 60
Paragraph No. Paragraph Due Status Date of Comments/Nest Step
Date Compliance
(5) Special Management Area Use Permit
Approval (SMA 95-3) granted by the Planning
Commission on September 28, 1995 (SMA
Permit No. 356) attached hereto as Exhibit "1'y'
and incorporated herein by this reference.
(6) Change of Zone Approval passed by the
County Council on March 7, 1997 and signed
into law by the Mayor on March 13, 1997 as
Ordinance 97-36 attached hereto s Exhibit "G"
incorporated herein by reference.
e. BOND. "Bond" shall mean a performance
bond, cash bond, surety company bond, personal
surety bond, or other financial assurance obtained
or caused to be obtained by OCEANSIDE. Such
bond shall be good for no more than five (5)
years from the date [he bond is issued, unless
otherwise extended by the mutual agreement of
the Director of the COUNTY Department of
Public Works and OCEANSIDE in writing.
f BYPASS HIGHWAY. "Bypass Highway"
shall mean that bypass highway between the
approximate vicinity of Keauhou and Captain
Cook, consisting of two (2) lanes with a sufficient
Right-of--Way for a total of four (4) lanes required
in part to satisfy the conditions of Approvals and
to alleviate traffic congestion on the Mamalahoa
Page 3
Hokuli a
Development Agreement (Effective Date: April 20, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January l4, 2004
Page 4 of 60
Paragraph No. Paragraph Due Status Date of Comments/Nezt Step
Date Compliance
Highway that has existed for many yeazs. This
Bypass Highway is also referred to as [he
"Mamalahoa Highway Bypass" under Ordinance
Nos. 96-7, 96-8 and 97-36 attached as Exhibits
"C", "B" and "G", respectively. Further detail
and description of the Bypass Highway is
attached hereto as Exhibit "H" and incorporated
herein by this reference.
g. COASTLINE PARK. "Coastline Park"
shall mean that coastline park required by the
COUNTY to be established under Conditions 8
and 10 of SMA Permit No. 345, Condition H of
Ordinance No. 96-8, and Condition No. K of
Ordinance No. 96-7, and subject to the terms and
conditions as set forth in [his Agreement.
h. COUNTY. "County" shall mean the County
of Hawaii, municipal corporation, and where
applicable, the appropriate departments and
agencies by does not include the County Council.
i. COUNTY COUNCIL. "County Council"
shall mean the County of Hawaii County Council.
j. DENSITY. "Density" shall mean the
meaning given such term in the Zoning Code.
k DEVELOPER. "Developer" shall mean a
person, corporation, organization, partnership,
association, or other legal entity constructin ,
Page 4
Hokuli~a
Development Agreement (Effective Date: Apri120,1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 5 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
erecting, enlarging, altering, or engaging in any
development activity.
I. DEVELOPMENT AGREEMENT CODE.
"Development Agreement Code" shall mean
Ordinance No. 93-37, which ordinance passed
into law on Apri] 27, 1993 (now HCC chapter
30).
m. DEVELOPMENT AGREEMENT RULES.
"Development Agreement Rules shall mean
County of Hawaii Office of the Mayor Rule 1
regarding Development Agreements, approved by
the Mayor on May 16, 1995 and filed in the
office of the County Clerk on May 18, 1995.
n. DEVELOPMENT AGREEMENT
STATUTE. "Development Agreement Statute"
shall mean HRS sections 46-121 through 46-132.
o. DIRECTOR. "Director" shall mean the
Director of the Planning Deparcment of the
County of Hawaii.
p. ENACTING RESOLUTION. "Enacting
Resolution" shall mean Resolution No. 244 98
(Draft 3) approving this Agreement, adopted by
the County Council on April 1 1s' , 1998, a copy
of which is attached hereto as Exhibit "I" and
incorporated herein by reference.
q. EXACTION. "Exaction" shall mean any
Page 5
Hokuli'a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 6 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
and all exactions; fair share contributions, impact
or in-lieu fees or payments; dedication or
reservation requirements; obligations for on-or
off-site improvements or construction
requirements for public facilities or
infrastructure; or services called for in connection
with the development or construction of the
Project pursuant to the Land Use Regulations and
Approvals.
r. GOVERNMENTAL ENTITY OR
AGENCY. "Governmental Entity or Agency"
shall mean and include, without limitation, the
legislative, administrative and executive branches
of the local, state, and federal governments.
s. HCC. "HCC" shall mean the Hawaii County
Code as amended.
t. HRS. "HRS" shall mean the Hawaii Revised
Statutes, as amended.
u. IMPACT FEE ORDINANCE. "Impact
Fee Ordinance" shall mean a Unified Impact Fees
Ordinance or similar ordinance setting forth
criteria for the imposition of the exactions or the
assessment of impact fees.
v. LAND USE REGULATIONS. "Land Use
Regulations" shall mean any and all State and
County laws, ordinances, resolutions, rules and
Page 6
Hokuli a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 7 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
policies governing the permitted uses of the
Property, including without limitation, uses,
density, design, height, size and building
specifications of proposed buildings; construction
standards and specifications for roads and
utilities, roadway improvements; affordable
housing; community benefit assessments; water
utilization and all exaction requirements
applicable to the development of the Property;
made applicable and in force as of the date of this
Agreement.
w. LAND OWNER. "Land Owner" shall mean
the equitable or legal holder of interest in real
property or [he lessee holding under a recorded
lease.
x. LAWS. "Laws" shall mean the laws of the
State, the Constitution of the United States, the
Constitution of the State, any federal, state or
local codes, statutes or executive mandates in any
court decision, ordinances, or charter provisions
or administrative rules and regulations of any
applicable governmental entity or agency.
y. LENDER. "Lender" shall mean any
financial institution or entity providing funds for
the Project, including but not limited to banks,
savings and loans, investors and artners.
Page 7
Hokuli'a
Development Agreement (Effective Date: April 20, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 5-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page Hof 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
z. MAYOR. "Mayor" shall mean the Mayor of
the COUNTY.
aa. OFFICE OF THE MAYOR. "Office of the
Mayor" shall mean the Mayor of the COUNTY
and the managing director.
ab. OCEANS[DE. "Oceanside" shall mean 1250
OCEANSIDE PARTNERS, a Hawaii limited
partnership, dba OCEANS[DE 125Q, whose
principal place of business and mailing address is
74-5620A Palani Road, Suite 200, Kailua-Kona,
Hawaii 96740, its successors and assigns.
ac. PERSON. "Person" shall mean any
individual, group, partnership, firm, association,
corporation, trust, governmental official,
administrative body, tribunal or any form of
business or legal entity.
ad. PLANNING COMMISSION. "Planning
Commission" shall mean the Planning
Commission of the COUNTY.
ae. PLANNING DEPARTMENT. "Planning
Department" shall mean the Planning Department
of the COUNTY.
af. PROJECT. "Project" shall mean that
agricultural lot community and its various
components, also including but not limited to the
lod e, golf course, golf clubhouse, and the
Page 8
Hokufi'a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 9 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
coastline park, and more fully described and
show in Exhibit "J" attached hereto and
incorporated herein by reference. Project shall
not include the Bypass Highway.
ag. PROPERTY. `Property" shall mean any
and all conservation lands and areas which are the
lands under Change of Zone Approvals; (1)
accepted by the County Council on June 15, 1994
as Bill 182, Draft 6, signed into law by the Mayor
on June 28, ] 994 as Ordinance No. 94-73
attached hereto as Exhibit "S", and amended and
superseded by Bill 181, Draft 6, accepted by the
County Council on January 3, 1996, and signed
into law by the Mayor on January I5, 1996 as
Ordinance No. 96-8 attached hereto as Exhibit
"B"; and (2) accepted by the County Council on
January 3, ] 996 as Bill 158, Draft 5, and signed
into law by the Mayor on January 15, 1996 as
Ordinance No. 96-7 attached hereto as Exhibit
"C"; that is those lands which include the 711.2
acres of land (more or less) located on and in the
Island and County of Hawaii, identified as Tax
Map Key No. 7-9-12: 03, and the 580.63 acres of
land (more or less) located on and in the Island
and County of Hawaii and identified as Tax Map
Key No. 8-1-04: 03 (portion), both of which
Page 9
Hokuli a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page l0 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
OCEANSIDE owns in fee simple; and 260.8
acres of land (more or less) located on and in the
Island and County of Hawaii, identified as Tax
Map Key Nos. 7-9-12: 04 and 7-9-12: 11, and
more fully described and shown in Exhibit "K"
attached hereto and incorporated herein by this
reference, which OCEANSIDE leases from
Ackerman Ranch under the development lease
dated July 25, 1989, a short farm of which is
attached hereto as Exhibit "L", and incorporated
herein by this reference.
ah. PUBLIC ACCESS PLAN. "Public Access
Plan", also known ass the "Public Shoreline
Access Plan", shall mean that plan, developed in
conjunction with community groups and
submitted to and to be approved by the Director,
as required by the COUNTY pursuant to
Condition 8 of SMA Permit No. 345, Condition
H of Ordinance No. 96-8, and Condition K of
Ordinance No. 96-7, and subject to the terms and
conditions as set forth in this Agreement.
ai. PUBLIC HEARING. "Public Hearing"
shall mean the public hearing held for purposes of
receiving public comments regarding the draft of
this Agreement as required pursuant to Rule I-
6(d) of the Development A reement Rules.
Page 10
Hokuli a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 11 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
aj. RIGHT-OF-WAY. "Right-of--way" shall
mean the route required for construction of the
Bypass Highway.
ak. SEGMENTS(S). "Segment(s)" shall mean
that portion of Right(s)-of--Way falling within a
parcel or parcels of land owned by Seller(s).
aI. SMALL-LOT SUBDIVISION. "Small-lot
Subdivision" shall mean the subdivision by
OCEANSIDE of the Property into lots less than
twenty (20) acres in size.
am. STATE. "State" shall mean the State of
Hawaii.
an. TERM. "Term" shall mean the term of this
Agreement as determined in Paragraph (3) herein.
ao. UNIT OF CREDIT. "Unit of Credit" shall
mean the present value of past or future payments
or contributions, including, but not limited to the
dedication of land or construction of roadway
improvements toward the cost of existing or
future public facility capital improvements being
issued in lieu of payment for Segment(s) of the
Right-of-Way. One (1) unit of Credit shall be
issued for each $3,101.68 value of land
contributed toward the Bypass Highway. The
value of the unit of credit shall be equivalent to
[he amount of roadway fair share contribution or
Page I I
Hokuha
Development Agreement (Effective Date: Apri120,1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 12 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
road impact fee required to be paid for each
dwelling or lodge unit a[ the time of redemption.
The recipient of a Unit of Credit may redeem the
Unit of Credit toward any roadway fair share
contribution or toward any roadway impact fee
should the COUNTY adopt such an impact fee
ordinance.
ap. ZONING CODE. "Zoning Code" shall
mean HCC Chapter 25 as it exists as of the date
of this Agreement.
aq. OTHER DEFINITIONS. "Other
Definitions". Unless otherwise provided herein,
other words and terms shall have the meaning set
forth in the Zoning Code. To the extent that the
definitions in the Zoning Code conflict with the
definitions contained in this Agreement, the
definitions in this Agreement shall be controllin .
Paragraph No. 3 EFFECTIVE DATE: TERM. The Term of this In Process Hokuli'a will comply with this requirement.
Effective date: Term Agreement shall commence on the effective date
of the Enacting Resolution and shall terminate on
April 1.2028, unless sooner terminated.
a. By agreement of the parties to this Agreement
that the parties have satisfied all of the terms and
conditions of this Agreement, as further
evidenced by a resolution of the County Council
pursuant to Paragra h (50), herein; rovided that,
Page 12
Hokuli a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 13 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
OCEANSIDE has been reimbursed for the
construction costs incurred for the Bypass
Highway pursuant to Paragraph (l5);
b. As a result of a material breach of
OCEANSIDE pursuant to Paragraph (25), herein;
or
c. By cancellation of this Agreement pursuant to
Paragraph (27), herein; or unless subsequently
extended by mutual agreement of the COUNTY
and OCEANSIDE; or
d. By reimbursement of construction costs for
the Bypass Highway paid to OCEANS[DE
pursuant to Paragraph (IS), herein; provided,
however, that the parties to this Agreement have
agreed that both parties have satisfied all of the
terms and conditions of this Agreement as further
evidenced by a resolution of the County Council
pursuant to Paragraph (48), herein.
Paragraph No. 4 AFFECTED LAND. The Property that is the Hokuli'a will comply with this requirement.
Affected Land land subject to this Agreement and the Right-of-
Way for the Bypass Highway.
Paragraph No. 5 PERMITTED USES OF THE PROPERTY. Hohuli'a will comply with this requirement.
Permitted Uses of Permitted uses of the Property shall be all uses
Page 13
Hokuli a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 14 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
the Property permitted under the Land Use Regulations and
Approvals, including without limitation, the
permitted uses in Chapter 205, HRS, the Zoning
Code section 25-5-72, and all supplemental uses
allowed under Zoning Code sections 254-1
through 25-4-14.
Paragraph No. 6 DENSITY OF USE. With the exception of that
DensiTy of Use use described under Zoning Code section 25-4-9, Hokuli'a will comply with this requirement.
one Q) dwelling unit per building site is permitted
on the Property pursuant to Zoning Code section
25-5-72(a)(9).
Paragraph No. 7 MAXIMUM HEIGHT OF PROPOSED
Maximum Height of BUILDINGS. The height of the buildings Hokuli'a will comply with this requirement.
Proposed Buildings proposed for the Property shall be limited to the
maximum height restrictions contained in the
Zoning Code.
Paragraph No. 8 MAXIMUM SIZE OF PROPOSED Hokuli'a will comply with this requirement.
Maximum Size of BUILDINGS. The size of buildings proposed
Proposed Buildings for the Property shall be limited to the maximum
size restrictions, if any, contained in the Zoning
Code.
Page 14
Hokuli a
Development Agreement (Effective Date: Apri12Q, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 15 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
Paragraph No. 9 BENEFITS. The COiJNTY aclmowledges that In Process Hokuli'a will comply with this requirement.
Benetits OCEANSIDE is providing the benefits to the
County and/or the Community.
Paragraph No. 10 ACQUISITION AND DEDICATION OF In Process Hokuli'a will comply with this requirement.
Acquisition & LAND FOR BYPASS HIGHWAY.
Dedication of land a. The Bypass Highway has been determined by
for Bypass Highway the COUNTY as providing a regional public
purpose and will therefore benefit the COUNTY,
OCEANSIDE shall be deemed to have satisfied
the requirements of Condition M(2) of Ordinance
96-7 and Condition L(2) of Ordinance 96-8, if
and when it has: (i) acquired all Segments of
Right-of--way, or (ii) acquired one or more
~ Segment(s) of Right-of--Way and the remaining
Segments have been requested by OCEANSIDE
for the COUNTY to condemn.
b. OCEANSIDE shall attempt ro negotiate a
purchase price with any and all Persons. Should
OCEANSIDE and any Person be unable to
negotiate a mutually agreeable purchase price,
then OCEANSIDE shall provide to the Person a
list containing no less than three (3) and no more
than five (5) qualified Appraisers to appraise the
value of the Person's Segment(s) of the Righ[-of-
Page 15
Hokuli'a
Development Agreement (Effective Date: Apri120,1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
.January 14, 2004
Page 16 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
Way. From the list of Appraisers, the Person
shall select one (1) Appraiser to assess the value
of the Segment(s). OCEANS]DE may offer to
purchase the fee simple interest in the Segment(s)
from the Person for a price at or near the
appraisal value as determined by the Appraiser.
Should OCEANSIDE and [he Person be unable to
select an Appraiser or if the Person and
OCEANSIDE cannot decide on a price
recommended by muWally selected Appraiser,
then upon written request to the Mayor, the
COUN"CY shall be required to use its
condemnation powers to acquire the Segment(s)
from the Person pursuant to Paragraph (I 1).
c. Notwithstanding Paragraph (IO.b), if the
Person fails to participate in negotiations with
OCEANSIDE for the purchase of Segment(s) of
the Right-of--Way from the Person despite
OCEANSIDE's good faith attempts to negotiate,
then OCEANSIDE may, in its sole discretion,
submit a letter to the Mayor to have the
COUNTY utilize its condemnation powers. Upon
receipt of the written request, the COUNTY shall
be required to use its condemnation powers to
acquire the Segment(s) from the Person pursuant
to Paragraph(I I).
Page 16
Hokuli'a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 17 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
Paragraph No. 11 CONDEMNATION OF LAND FOR BYPASS In Process Hokuli'a will comply with this reyuiremcnt.
Condemnation of HIGHWAY. Should the Person fail to participate
land for Bypass in negotiations with OCEANSIDE over the
Highway purchase of Segment(s) of [he Right-of-Way from
the Person, or should OCEANSIDE and the
Person be unable to agree, during their
negotiations, to the purchase of the Segment(s)
because of their failure to agree upon an
Appraiser or on the purchase price of the
Segment(s) or on the terms of the purchase, the
condemnation powers of the COUNTY shall be
required for the acquisition of the Segment(s).
a. Upon OCEANSIDE's tender of a requirement
of condemnation by letter to the COUNTY, [he
COUNTY shall within thirty (30) days begin to
immediately and expeditiously exercise the same
pursuant to HRS Chapter 101. OCEANSIDE's
tender of such requirement of condemnation to
the COUNTY shall constitute a "formal initiation
of condemnation action" as the term is used in
Condition L(2) of Ordinance 96-8 and Condition
M(2) of Ordinance 96-7 and shall relieve
OCEANSIDE of all further liability or obligation
to purchase Segment(s) of the Right-of-Way
directly from such Person.
Page 17
Hokuli a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Aunual Report
January 14, 2004
Page 18 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
h. The COUNTY shall submit to OCEANSIDE a
written request for payment of any and all
reasonable costs and expenses incurred by the
COUNTY for the acquisition of the condemned
land in conjunction with the COUNTY'S exercise
of its condemnation powers when OCEANSIDE
has determined in its sole and absolute discretion
that there is a need for possession or in the event
that a Court orders payment for the acquired land.
Within forty-five (45) days of written notice from
the COUNTY, OCEANSIDE shall reimburse the
COUNTY for any and all reasonable costs and
expenses incurred by the COUNTY for [he
acquisition of the condemned land in conjunction
with [he COUNTY'S exercise of its
condemnation powers. OCEANSIDE shall not be
responsible to reimburse the COUNTY for any
and all costs relating to the salary of County
personnel and administration and overhead,
including but not limited to independent
contractors and legal counsel, and any interest
payments incurred by COUNTY as a result of
COUNTY'S failure to pay compensation to the
Person within thirty (30) days of final judgment
in the condemnation action. The written notice
described herein from the COUNTY to
Page IS
Hokuli a
Development Agreement (Effective Date: Apri12Q 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page l9 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
OCEANSIDE shall contain a detailed verifiable
accounting of any and all such costs and
expenses.
c. Should a dispute arise over the amount of
monies owed by OCEANSIDE to the COUNTY,
then both parties agree to first pursue settlement
of the dispute by arbitration pursuant to HRS,
Chapter 658. OCEANSIDE shall submit to the
COUNTY a list of arbitrators to hear the dispute.
The COUNTY has ten (10) calendar days to
select one (1) arbitrator from OCEANSIDE's list.
If the COUNTY fails to select an arbitrator, then
OCEANSIDE may select an arbitrator to hear the
dispute.
Paragraph No. 12 DONATION OF R[GHT-OF-WAY. Hokuli'a will comply with this requirement.
Donation of right- Notwithstanding anything herein to the contrary,
of-way should a Person donate the Segment(s) of the
Right-of--Way to OCEANSIDE for no
consideration, the COUNTY shall:
a. Grant the Person who contributes their land
towards the Bypass Highway units of credit
which may be used by the Person to off-set future
roadway fair share assessment or impact fee
re uiremen[s. Each unit of credit shall off-set the
Page 19
Hokuli a
Development Agreement (Effective Date: Apri12Q 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 20 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
roadway fair share assessment or impact fee
requirement for one (I} dwelling or lodge unit.
The amount of credits shall be the total value of
the Segment(s) for Right-of--Way divided by the
per lot fair share assessment or impact fee
requirement to mitigate road impacts for each
$3,IOL68 value of land contributed. The total
value of the Segment(s) for Right-of--Way shall
be based on the appraised value of the Segment(s)
at the time the Person dedicates and/or donates
the Segment(s) to OCEANSIDE as determined by
the Appraiser selected using the procedures
outlined in subparagraph (1 O.b).
b. The COUNTY shall grant a density credit [o
Persons whose lands are donated for the
Segment(s) of the Right-of--Way. The density
credit is equal to the area of land that is utilized.
The density credit shall be added to the Person's
remaining property at the time the Person obtains
land use approvals from the COUNTY. The
density credit allows the Person to develop the
total number of units [hat would be permitted
under the applicable zoning at the time the Person
obtains land use approvals as if the Person had
not contributed land for the Right-of--Way
c. The COUNTY shall im ose no additional fair
Page 20
Hokuli~a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
.Tanuary 14, 2004
Page 21 of 60
P~ raph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
share assessments or any impact fee ordinance
requirements relating to Regional highway
Impacts on Persons whose lands have been
donated to the County or sold for the Right-of-
Way and who develop their lands in conformance
with existing zoning.
Paragraph No. 13 CONSTRUCTION OF THE BYPASS In Process Hokuli'a will comply with this requirement.
Construction of By HIGHWAY. The Bypass Highway shall consist
Pass Highway of two (2} lanes with sufficient Right-of--Way for
a total of four (4) lanes. The Bypass Highway
shall be constructed to standards set forth by the
Department of Public Works with such
modifications as may be deemed necessary by the
Department of Public Works; provided, however,
that the expansion of [he Bypass Highway from
two (2) to four (4) lanes shall not be the
responsibility of OCEANSIDE.
a. OCEANSIDE shall obtain final approval From
the County Department of Public Works for any
and all necessary construction plans for the
Bypass Highway. OCEANSIDE shall construct
the Bypass Highway to the standards set forth in
Exhibit "M" by the Department of Public Works
for Alii Highway with such modifications as may
be deemed necessary bti the County De artment
Page 21
Hokuli a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 22 of 60
Paragraph No. Paragraph Due Status Date of Comments/Nest Step
Date Compliance
of Public Works and by OCEANSIDE. As
required by the chief engineer of the County
Department of Public Works, OCEANSIDE shall
provide a landscape buffer along highway
sections where the highway is within five
hundred (500) feet of dwellings existing as of
.lanuary 1, 1998.
b. Prior to the issuance of the first final Small-
lot Subdivision approval for any portion of the
Property, OCEANS[DE shall:
(1) Post a bond in favor of the COUNTY to
assure that the infrastructure improvements for
the Bypass Highway and for the channelization
and signalization of the Mamalahoa Highway-
Haleki'i Street intersection will be constructed;
(2) Determine the final Right-of--Way for the
alignment of the entire Bypass Highway,
including the intersection areas. OCEANSIDE
shall provide the Director with a metes and
bounds description of each Segment of the Right-
of-Way involved and evidence of ownership or
control as deemed necessary by the Director. In
lieu of OCEANSIDE obtaining or acquiring
ownership or control of any segment of the
Bypass Highway, the requirement shall be
deemed fulfilled upon the COUNTY'S formal
Page 22
Hokuli' a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 23 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
initiation of condemnation action(s) pursuant to
Paragraph (1 1) for such Segments. The
COUNTY shall issue a letter attached as Exhibit
"N" that acknowledges OCEANSIDE's
satisfaction of the requirement to obtain or
acquire ownership or control of the Right-of--Way
for the entire length of the Bypass Highway,
including those portions that the County has
initiated condemnation proceedings and/or has
ownership or, control over, which removes the
requirement from OCEANSIDE.
(3) Provide a bond for relevant phases of the
extension of Haleki'i Street, through the subject
property as generally reflected in Exhibit "0",
which phasing of improvements shall be
approved by the COUNTY Department of Public
Works.
c. Prior to occupancy of any dwelling unit
within the Property or prior to [he issuance of an
occupancy permit for the lodge, whichever occurs
first, OCEANSIDE shall:
(I) Complete construction of the roadway
section from Keauhou to the makai extension of
Haleki'i Street; and
(2) Install a barricade or breakaway gate
meetin with the requirements of the COUNTY
Page 23
Hokuli'a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 24 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
Department of Public Works if, before the
completion and opening of the entire Bypass
Highway, a portion of said bypass is completed
and opened, and said portion provides a
connection to Haleki'i Street;
d. In any even[ from the time construction
commences, the entire Bypass Highway shall be
completed within five (5) years provided that
those certain circumstances as articulated in
Para raph (39) do not exist.
Paragraph No. 14 DEDICATION OF BYPASS HIGH-WAY. In Process Hokuli'a will comply with this requirement. I
Dedication of MBH The Bypass Highway shall be dedicated to the
COUNTY in phases, if any, upon completion and
the COUNTY shall accept said dedication within
sixty (60) calendar days; provided that the Bypass
Highway, as constructed, complies with plans and
specifications for said highway as approved by
the County. Following dedication of the Bypass
Highway to the COUNTY, the COUNTY shall
assume all responsibility and costs for operation,
maintenance, repair or reconstruction of the
Bypass Highway.
Paragraph No. IS REIMBURSEMENT OF CONSTRUCTION In Process Hokuli'a will cotnph~ with this requirement.
Reimbursement of COSTS FOR THE BYPASS HIGHWAY.
Page 24
Hokuli' a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 25 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
Construction Costs a. Responsibility of Developer. OCEANSIDE
shall be responsible for all costs associated with
the design, land acquisition, construction of the
Bypass Highway, including, without limitation,
the costs associated with obtaining any necessary
Approvals associated with the same ("Total
CosP'); provided that, nothing herein shall be
construed as preventing OCEANSIDE from
seeking reimbursement for such costs and the
total amount of reimbursement received by
OCEANSIDE shall not exceed the difference
between the Total Cost of the Bypass Highway
and the "Project Impact Cost", as described in
further detail in Paragraph (15.a.1).
(I) Based on a development constituting seven
hundred thirty (730) lots and eighty (80) lodge
units ("Project Unit Count"), the Project
constitutes approximately thirty-eight (38)
percent of the total capacity of the Bypass
Highway based upon a Level of Service "D"
("Project Impact"). Should OCEANSIDE
develop less or more than the Project Uni[ Count,
then the percentage of traffic attributable to the
Project shall be adjusted accordingly. The Total
Cost of the Bypass Highway multiplied by the
Project Impact shall determine the Project Im act
Page 25
Hokuli'a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-O12: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 26 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
Cost. For example, if the Total Cost of the
Bypass Highway is $I.0 million and the Project
Impact is thirty-eight (38%) percent, the Project
Impact Cost is $380,000.00. In such a case,
OCEANSIDE shall then be eligible to receive no
more than $620,000 of reimbursement ($1.0
million minus $380,000).
(2) The remaining balance of the Total Cost of
the Bypass Highway after deducting
OCEANSIDE's and Kealakekua Development
Corporation's share shall be reimbursed to
OCEANSIDE with funds from income sources
identified in Paragraph QS.c.I) for costs incurred
by OCEANSIDE in the land acquisition, design,
planning, construction, development and approval
of the Bypass Highway.
b. Adoption of a Impact Fee Ordinance.
Should the County Council adopt a Impact Fee
Ordinance, OCEANSIDE shall receive one (1)
unit of credit for every $3,101.68 it has spent
toward the construction of the Bypass Highway
and the Haleki'i Street intersection
improvements. The credits may be applied
toward the requirements of an Impact Fee
Ordinance.
c. Funds for Reimbursement. Durin the
Page 26
Hokuli a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, O1] and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 27 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
course of this Agreement, if the COUNTY
approves new rezonings in the vicinity of
Mamalahoa Highway, then the COUNTY shall
assess those new developments a "Fair Share"
contribution in accordance with Council policy,
or similar fee, to address the regional impacts of
their development on road facilities. In the event
that the COUNTY collects funds for such "Fair
Share" contributions, or similar fees, as may be
allowed by the rezoning ordinances, and as
identified in Paragraphs (I S.c.l. and 15.c.2.
herein) from developers and landowners whom
the County has determined as benefiting from the
Bypass Highway, the COUNTY shall reimburse
OCEANSIDE from such funds as they are
collected.
(1) Funds to reimburse OCEANSIDE shall be
from, but not limited to, the following sources:
(a) "Fair Share" contributions paid to the
COUNTY to address potential regional impacts
of their development on road facilities;
(b) Upon the adoption of a Impact Fee
Ordinance that assesses or imposes an impact fee
either for the COUNTY as a whole or for the
region extending from Keauhou to Milolii, that
ortion of the impact fee necessary to address
Page 27
Hokuli'a
Development Agreement (Effective Date: April 20, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 28 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
potential regional impacts on road facilities;
(c) Any other monetary contribution paid
to the COUNTY from developers or land owners,
whom the COUNTY determines as benefiting
from the Bypass Highway, to address potential
regional impacts of such developer's or land
owner's development on road facilities;
(2) [n addition to the reimbursement funds
identified in Paragraph Q S.c.l), OCEANSIDE
shall be entitled to "Fair Share" contributions in
the amount of $3.6 million, as may be adjusted
from time to time, paid to the COUNTY by
Kealakekua Development Corporation or its
successors to address potential regional impacts
of Kealakekua Development Corporatiods
project, less $1.3 million representing
contributions toward Mamalahoa Highway
Improvements and improvements to Greenwell
Park as required by Conditions K and N(2),
respectively, of Ordinance 95-7Q as may be
amended.
(3) Should the COUNTY Council adopt an
Impact Fee Ordinance, developers and land
owners whom the COUNTY determined as
benefiting from the Bypass Highway shall receive
Hi hway Credits to be a lied toward the
Page 28
Hokuli a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 29 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step l
Date Compliance J
requirements of a Impact Fee Ordinance. -
(4) As long as the COUNTY shall assess those
new rezonings in the vicinity of Mamalahoa
Highway a fair share contribution in accordance
with Council policy, or if adopted, an impact fee,
to address the regional impacts of their
developments on road facilities, OCEANSIDE
acknowledges and understands that should any
funds or options identified in the preceding
sections t S.b and c. fail to materialize or fail to
meet [he remainder of the total cost of the Bypass
Highway, the COUNTY shall not be held
responsible for any reimbursements.
d. "BenefiC' to Other Developments. The
COUNTY finds that certain geographic portions
of Mamalahoa Highway arc currently congested
and that any new development is severely
restricted because of traffic considerations.
Developments within the geographic region
extending from Keauhou to the north and to
Milolii to the south will benefit in varying
degrees from the construction of the Bypass
Highway. This benefit is based on the congestion
relief provided by the Bypass Highway to
Mamalahoa Highway/Kuakini Highway as well
as by providing direct access to the land alon the
Page 29
Hokuli'a
Development Agreement (Effee6ve Date: April 20, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 5-1-004: portion of 003)
2004 Annual Report
.January 14, 2004
Page 30 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
Bypass Highway corridor. Accordingly, the
amount of the "benefit" of the bypass Highway
will vary b}' geographic region.
Amount of Reimbursement to
OCEANSIDE. The amount of the COUNTY'S
reimbursement to OCEANS[DE shall be based on
a percentage of those income sources identified in
subparagraph (1 S. c) which are collected or
assessed by the COUNTY from other developers
and land owners whom the COUNTY has
determined as benefiting from the Bypass
Highway. The percentage paid shall be in
accordance with the geographic areas as
described below, and as more particularly shown
on Exhibit"P".
Area Description Percentage
1. Keauhou 25%
2. Honalo-Captain Cook- 80%
Existing Mamalahoa Hwy Corridor
3. Honalo-Captain Cook - Mauka Area 100%
4. Honalo-Captain Cook - Makai Area 100%
S. Captain Cook to Milolii 65%
*In recognition of the existing Keauhou road
and traffic improvements, any "Fair Share"
contribution, impact fee or similar fee
Page 30
Hokuli' a
Development Agreement (Effective Date: April 20, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 31 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
assessed on new rezonings by the County
Council in the Keauhou Area may be
satisfied in the form of cash, land and/or ~
facilities, or any combination thereof
acceptable to the director.
(2) Collection o[ Funds. Any Reimbursement
Funds received by COUNTY shall be held in
truss for OCEANSIDE and promptly remitted to
OCEANSIDE by the COUNTY no later than
ninety (90) days following the COUNTY'S
receipt of such remittance.
e. Private Agreements. The provisions of this
Paragraph shall not preclude OCEANSIDE from
entering into private agreements with the State
and/or such other developers or landowners to
allocate the payment of Reimbursement Funds
related to the Bypass Highway directly to
OCEANSIDE. OCEANSIDE shall submit
receipts of such payments to the COUNTY.
f Reimbursement Agreement. The provisions
for reimbursement contained in this Agreement
shall constitute an agreement for reimbursement
between COUNTY and OCEANSIDE, which
agreement shall satisfy the mandates of Condition
L of Ordinance 96-8, ar,d Condition M of
Page 31
Hokuli'a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14,2004
Page 32 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
Ordinance 96-7.
Paragraph No. 16 ROADWAY STUB-OUTS. OCEANSIDE In Process Hokuli'a will comply with this requirement.
Roadway' stubouts shall provide roadway stub-outs, generally shown
in Exhibit "Q", to provide future connections
between the Property and its adjacent north and
south boundaries. Such roadway stub-outs shall
be constructed in phases and in conjunction with
[he completion of subdivision improvements on
adjacent Property.
Paragraph No. 17 PUBLIC ACCESS PLAN. OCEANSIDE shall Complied Public Access Plan approved b~~ County nn
Public ,4ccess Plan develop, in consultation with community groups, January 29. 1999.
a final comprehensive Public Access Plan. The
Public Access Plan shall be submitted to and
approved by the Director prior to final
subdivision approval of the first small-lot
subdivision.
a. The final comprehensive Public Access Plan
shall be developed in consultation with the
Director and the Hawaii State Department of
Land and Natural Resources ("DLNR") and shall
include mauka-makai and lateral shoreline
accesses, parking area(s), signage, emergency
yes onse considerations, restrictions on use (if
Page 32
Hokuli~a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 33 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
any), provision of recreational and restroom
facilities at appropriate locations, and related
improvements.
b. In accordance with Ordinance 96-7 and 96-8,
the Public Access Plan shall also integrate at the
trail heads, shoreline access parks and the
historical park, any public accessway(s) to the
interpretive trail system(s) and to the historical
and archaeological sites. Such a Public Access
Plan shall be approved by the Director, in
consultation with the DLNR. In developing the
Public Access Plaq OCEANSIDE should attempt
to protect both land and ocean resources and
natural conditions, as reasonably practicable.
Paragraph No. 18 COASTLINE PARK. OCEANSIDE shall In Process Hokuli'a will comply with this requirement.
Coastline Park. develop the portion of its lands in the Property
located in the Conservation District for use as a
Coastline Park for the benefit of the public
pursuant to the Approvals.
a. Construction and Development of the
Coastline Park. OCEANSIDE shall be
responsible for any and all costs associated with
the design, operation and maintenance,
construction and development of the Coastline
Park, including, without limitation, the costs
Page 33
Hokuli a
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TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 34 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
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associated with obtaining any necessary
Approvals associated with the same.
Notwithstanding the foregoing, OCEANSIDE
may transfer it obligations, in whole or in part,
under this paragraph to the Project's
"Homeowner Association" or other similar entity
formed for the purpose of serving as the
governing body for all the members and owners
of the Project for the protection, improvement,
alteration, maintenance, repair, replacement,
administration and operation of [he common
areas, for the assessment of expenses, for the
payment of losses, and for other matters as may
be provided for in the Project's Declaration, the
Homeowner Association's Articles of
Incorporation, the Homeowner Associatiods By-
laws, or the Project's Design Guidelines, The
lleclaration shall contain language providing for
the perpetuity of [he Coastline Park and its
availability to the public for use in accordance
with certain rules and guidelines that will be
established in the public access plan as required
under SMA Permit No. 345 to be submitted by
OCEANSIDE to the Director for approval.
Additionally, if requested by OCEANS[DE or the
Page 34
Hokuli'a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 35 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
Homeowner Association, and if approved by the
COUNTY, which approval shall not be
unreasonably withheld, said Developer or the
Homeowner Association may assign its
responsibilities, in whole or in part, under this
paragraph to a foundation or other entity to
assume the duties and obligations stated herein.
b. The construction and development of the
Coastline Park shall be completed in phases
roughly proportional to the phases of the
Project's development as may be approved by the
Director pursuant to the Approvals and shall be
subject to the obtaining of all necessary
discretionary permits (e.g. Conservation District
Use Approval, Special Management Area Use
Permit, etc.).
Q) An area comprising twenty five percent
(25%J of the total Coastline Parkas shown on
Exhibit "R' attached hereto and incorporated
herein by [his reference, shall be developed and
improved by OCEANSIDE in phases within five
(5J years from the date final Small-lot
Subdivision Approval is obtained on any portion
of the Property.
(2) The first phase of the Coastline Park shall
be opened to the public within thirty (30) days
Page 35
Hokuli a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January l4, 2004
Page 36 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
following the opening of the golf course.
(3) In accordance with Ordinance 96-7 and
96-8, upon opening the first phase of the park
area, OCEANSIDE shall provide:
(a) a minimum of twenty-five (25)
public parking stalls, with sepazate pazking stalls
for residents and their guests, and separate
parking stalls for the Coastline Park's employees.
As may be imposed in permits necessary [o
complete the Coastline Park's improvements, the
parking stalls shall, at OCEANSIDE's discretion,
either be within the Coastline Park and/or within
OCEANSIDE's adjacent lands. The number of
parking stalls shall be increased commensurately
with the approval of additional park phases in
accordance with the public access plan;
(b) signage and provisions for public
access for night fishing and marine food
gathering purposes subject to restrictions which
limit said uses to non-commercial and recreation
uses only; and
(c) other restrictions which provide for
the health and safety of the public.
c. In accordance with SMA Permit No. 345,
Page 36
Hokuli a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14,2004
Page 37 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance J
upon the approval of the final comprehensive J
public access plan, draft covenants which detail
the rights, obligations and privileges of the
public, the County of Hawaii and OCEANSIDE,
its successors or assigns shall be submitted to the
Director for approval The approved covenants
shall be recorded in the manner required pursuant
to SMA Permit No. 345.
d. Prior to receiving final approval of the first
Small-lot Subdivision, OCEANSIDE shall
conve}' to COUNTY a perpetual easement for
public access over and recreational use of the
Coastline Park area pursuant to such restrictions
as may be established by OCEANS[DE with the
approval of the Director, to promote public health
and safety and the general security of the
Coastline Park for residents and guests of the
Project, to protect the area's natural condition,
and [o minimize any liability to OCEANSIDE,
pursuant to HRS Chapter 520.
e. OCEANSIDE's fee simple interest in the land
area of the Coastline Park shall be retained by
OCEANSIDE, who shall own and manage the
Coastline Park; provided that OCEANSIDE, in
Page 37
Hokuli'a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 38 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
its sole discretion, may transfer management
responsibilities for the Coastline Park [o any
homeowners' association or other entity which
may be formed for the Project subject to the
aforementioned covenants.
Paragraph No. 19 GUEST HOUSES. Nothing herein shall be Hokuli'a will comply with this requirement.
Guest Houses construed as prohibiting the construction of guest
houses within the project as the term is defined in
Zoning Code section 25-I-5(55), as allowed
under Zoning Code section 25-4-9, and pursuant
to Chapter 205-6, HRS.
Paragraph No. 20 GENERAL DEVELOPMENT OF THE In process Hokuli`a will comply with this requirement.
General PROJECT. OCEANSIDE shall have the right to
Development of the develop the Project, the Bypass Highway and the
Project Coastline Park in accordance with the terms and
conditions of this Agreement and the Approvals,
and the parties shall have the right to enforce the
provisions of this Agreement. The parties hereto
acknowledge [hat this Agreement is intended to
implement the intent of the parties and that
OCEANSIDE shall have the right to develop the
Project, the Bypass Highway and the Coastline
Park pursuant to the Land Use Re ulations and
Page 38
Hokuli a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 39 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
Approvals, subject to its adherence to and
performance of all terms and conditions of this
Agreement. In the event that a question arises
regarding OCEANSIDE's and the COUNTY'S
responsibilities or their intent, the parties shall
Zook toward this Agreement [o clarify such
issues.
Paragraph No. 21 SUBSEQUENT CHANGES IN LAND USE Hokuli'a will comply with this requirement.
Subsequent Changes REGULATIONS. Any subsequent change in
in Land Use any applicable law adopted by the COUNTY or
Regulations any other governmental entity or agency party to
this Agreement, which alters or amends the Land
Use Regulations, including, without limitation,
any moratoriums, shall be void as applied to the
Property; provided that this Paragraph shall not
prevent the COUNTY or any other governmental
entity or agency party to this Agreement from
requiring OCEANSIDE to comply with laws,
ordinances, resolutions, rules and policies of
general applicability and not specific to
OCEANSIDE enacted subsequent to the date of
this Agreement, if, under prior law, such laws,
ordinances, resolntions, rules and policies could
have been lawfully applied to the Property or any
Page 39
Hokuli a
Development Agreement (Effective Date: April 20, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-i-004: portion of 003)
2004 Annua? Report
January 14, 2004
Page 40 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
uses thereof as of the date of this Agreement if
the COUNTY or any other governmental entity
or agency party [o this Agreement finds it
necessary to impose the requirements because a
failure to do so would place the residents of the
Project or the immediate community in a
condition perilous to the residents' health or
safety, or both.
Paragraph No. 22 NECESSARY COUNTY APPROVALS. In Process Hokuli'a will comply with this requirement.
Necessary County a. With regard to any applications to the
Approvals COUNTY by OCEANSIDE for any and all ~
appropriate COUNTY Approvals required for the
construction or development of the Project, the
Bypass highway and the Coastline Park, the
COUNTY shall process such applications under
[he Land Use Regulations and issue to
OCEANSIDE all such approvals; provided that
such applications are consistent with and conform
to the standards, terms and conditions of this
Agreement and the Land Use Regulations; and
provided further, that the COUNTY shall not
impose on OCEANSIDE any further Exactions or
requirements other than Chose already existing as
of the date of the Enacting Resolution under the
A provals.
Page 40
Hokuli~a
Development Agreement (Effective Date: April 20, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 41 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
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b. The COUNTY shall accept and process
expeditiously any application(s) submitted under
this Paragraph or otherwise required under the
terms of this Agreement within such time frames
as specified within the Land Use Regulations;
provided, however, that if the Land Use
Regulations do not contain a specific time frame
for processing such application(s), the
application(s) shall be processed within a
reasonable amount of time from the date of
receipt of a complete application(s) by the
COUNTY; and provided futther that if, for any
reason, the application(s) as submitted by
OCEANSIDE is/are not complete, the COUNTY
shall promptly request from OCEANSIDE any
information or materials necessary to complete
the application(s).
Paragraph No. 23 CONFORMANCE WITH THE COUNTY In Process Hokuli'a will comply with this requirement.
Conformance with GENERAL PLAN AND COMMUNITY
the County General DEVELOPMENT PLANS. By virtue of the
Plan and CDP County Council's approval of the Enacting
Resolution, the council finds that as of the date of
this Agreement, this agreement is consistent with
Page 41
Hokuli'a
Development Agreement (Effective Date: April 20, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
,January l4, 2004
Page 42 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
I Date Compliance
L~ the County's General Plan as amended, and any
applicable Community Development Plans
adopted by the County Council and if effect as of
the date of this Agreement; provided however,
that in the event of any inconsistency between the
County General Plan and any applicable
community development plan by ordinance, the
County General Plan shall prevail.
Paragraph No. 24 ANNOAL REVIEW. On or before January 14 Ongoing I) 2001 Annual Report Hokuli'a will comply with this requirement.
Annual Review of each and every year following the execution of submitted on January
this Agreement, OCEANSIDE shall submit an I5, 2001.
annual report of its compliance with the terms 2) 2002 Annual Report
and conditions of this agreement to the Planning submitted on January
Department, or such agency as the County 1 I, 2002
designates in writing to OCEANSIDE, provided 3) 2003 Annual Report
further, that [he Planning Department or such submitted on January
designated agency shall review such report for 14, 2003
adequacy and accuracy, and shall forward a copy
of the annual report together with its findings and
any other comments to the Mayor, County
Council, OCEANSIDE and any other parties to
this Agreement within sixty (60) days.
Page 42
Hokuli'a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
,ianuary 14, 2004
Page 42 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
the County's General Plan as amended, and any
applicable Community Development Plans
adopted by the County Council and if effect as of
the date of this Agreement; provided however,
that in the event of any inconsistency between the
County General Plan and any applicable
community development plan by ordinance, the
County General Plan shall prevail.
Paragraph No. 24 ANNUAL REVIEW. On or before January 14` Ongoing 1) 2001 Annual Report Hokuli'a will comply with this requirement.
Annual Review of each and every year following the execution of submitted on January
this Agreement, OCEANSIDE shall submit an 15.2001.
annual report of its compliance with [he terms 2) 2002 Annual Report
and conditions of this agreement to the Planning submitted on January
Department, or such agency as the County 11, 2002_
designates in writing to OCEANS[DE, provided
further, that the Planning Department or such
designated agency shall review such report for
adequacy and accuracy, and shall forward a copy
of the annual report together with its findings and
any other comments to the Mayor, County
Council, OCEANSIDE and any other parties to
this Agreement within sixty (60) days.
Page 42
Hokuli' a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 43 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
Paragraph No. 25 MATERIAL BREACH BY OCEANSIDE. In Process Hokuli'a will comply with this requirement.
Material Breach a. Within thirty (30) days after the Planning
Department or the Office of the Mayor
determines on the basis of the periodic report that
OCEANSIDE has committed a material breach of
the terms or conditions of this Agreement, the
Planning Department or the Office of the Mayor,
as applicable. shall inform OCEANSIDE in
writing of the same, setting forth with reasonable
particularity the nature of the breach and any and
all evidence supporting the finding and
determination; provided, however, that
OCEANSIDE shall be given a reasonable time
period in which to cure any such material breach.
b. OCEANSIDE shall have one hundred eighty
(180) days to cure the material breach. If
OCEANSIDE fails to cure the material breach
within that time, the COUNTY may terminate or
modify the terms of this Agreement in
accordance with HCC section 30-6; provided,
however, that the Office of the Mayor shall have
first given the OCEANSIDE the opportunity:
(1) To rebut the finding and determination
by [he Office of the Mayor of the existence of the
material breach; or
(2) To consent to amend this Agreement
Page 43
Hokuli a
Development Agreement (Effective Date: April 20, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 44 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
according to such terms as the Office of the
Mayor may elect to propose in order to cure the
material breach; provided, however, that such
amendments must be accepted and approved by
the County Council pursuant to Paragraph (27),
herein.
c. Upon [he mutual agreement of the parties to
the Agreement, this Agreement maybe
terminated by County Council resolution if:
(1) OCEANSIDE does not agree to such
amendments proposed by the Office of the Mayor
or as subsequently modified by the County
Council pursuant to Paragraph (27), herein; or
(2) The County Council reasonably rejects the
amendments proposed by the Office of the Mayor
and the County Council states its reasons, in
writing, for rejecting the proposed amendments.
d. Should the County Council terminate this
Agreement, OCEANSIDE will have the right to
appeal such a decision to a court of law, in which
case the standard of review shall be whether the
County Council acted reasonably in its
termination of this Agreement. The termination
of this Agreement pursuant to this Paragraph
shall no[ preclude any rights or remedies that
would have existed had this Agreement not been
Page 44
Hokuli'a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14,2004
Pagc 45 of 60
Paragraph No. Paragraph Due Status Date of Comments/Nest Step
Date Compliance
entered into.
Paragraph No. 26 EXTENSION OF TIME. Hokuli'a will comply with this requirement.
Extension of Time a. Pursuant to Ordinances 96-7, 96-8 and 97-36,
upon written request of OCEANSIDE to the
Director, any dates of commencement or
completion for the Bypass Highway or the
Coastline Park may be extended by the Director
at OCEANSIDE's request.
b. Notwithstanding any extension limitations set
forth herein, upon written request by either party
for an extension of time in which to complete its
obligations hereunder which request is made due
to a delay in the performance of any of the
obligations of either party, a reasonable extension
of the commencement, completion, or
termination dates shall be granted by the other
party for the performance of the terms of this
Agreement; provided, however, that the delay in
performance must be due to an unforeseeable
cause or causes beyond the control and without
the fault or negligence of either party, including,
without limitation, acts of God, acts of the public
enemy, fires, floods, epidemics, quarantine
restrictions, strikes or walkouts, freight
embargoes. or unusually severe weather.
Page 45
Hokuli'a
Development Agreement (Effective Date: April 20, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 5-1-004: portion of 003)
2004 Annual Report
,lanuary 14, 2004
Page 46 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
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c. Nothing in this Agreement shall be construed
to preclude the parties hereto from further
extending any commencement, completion or
termination date hereunder by mutual agreement,
or from entering into subsequent agreements
subject to the approval of the County Council.
Paragraph No. 27 AMENDMENT OR CANCELLATION OF Hokuli'a will comply with this requirement.
Amendment or AGREEMENT. This Agreement may be
Cancellation of amended-or canceled, in whole or in part, by
Agreement mutual consent of Che parties to this Agreement,
or their successors in interest, as further
evidenced by County Council resolution;
provided that if [he County Council determines
that the proposed amendment would substantially
alter the original terms of this Agreement, a
public hearing on the amendment shall be held by
the County Council before it wnsents to the
proposed amendment. Non-substantive or
technical amendments which affect only
procedural requirements under this Agreement or
do not materially alter the original terms of this
Agreement shall only require the approval of the
Office of the Mayor, without action by the
County Council: and provided further that
cancellation of this Agreement ursuan[ to this
Page 46
Hokuli' a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 47 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
Paragraph shall not preclude any rights or
remedies that would have existed had this
Agreement not been entered into.
Paragraph No. 28 DISCRETION TO ENCUMBER. This Hokuli'a will comply with this requirement.
Discretion to Agreement shall not prevent or limit
Encumber OCEANSIDE, in any manner and at
OCEANSIDE's sole discretion, from
encumbering all or any portion of the Property, or
any improvement on the Property by any
mortgage, deed of trust, or other security device
securing financing with respect to the Property or
any improvements located thereon.
Paragraph No. 29 OBLIGATION TO MODIFY. The COUNTY Hokuli'a will comply with this requirement.
Obligation to acknowledges that any Lenders providing
Modify financing under Paragraph (28), herein, may
require certain modifications to this Agreement,
and the COUNTY agrees, upon request from time
to time, to meet with OCEANS[DE and/or
representatives of such lenders to negotiate in
good faith any such requirement for modification.
The COUNTY shall not unreasonably withhold
its consent [o any such requested modification,
and any such modifications shall be sub'ect to the
Page 47
Hokuli'a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
.January 14, 2004
Page 48 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
provisions of Paragraph (27), herein.
Paragraph No. 30 ENTITLEMENT TO WRITTEN NOTICE OF Hokuli'a will comply with this requirement.
Entitlement to DEFAULT. The mortgagee of a mortgage or
Written Notice of beneficiary of a deed of trust encumbering all or
Default any portion of the Property and their successors
and assigns shall, upon written request to the
COUNTY, be entitled to receive from the
COUNTY written notification of any default by
OCEANSIDE of the performance of
OCEANSIDE's obligations under [his Agreement
which has not been cured within such time period
as se[ forth in Paragraph (25), herein.
Paragraph No. 31 COOPERATION. The COUNTY shall not Hokuli'a will comply with this requirement.
Cooperation impede OCEANSIDE in carrying out the
transactions contemplated herein and in obtaining
all required approvals, authorizations, and
clearances. Furthermore, the COUNTY shall
cooperate with OCEANSIDE in executing and
delivering in recordable form all documents, -
instruments, or copies thereof; in providing non-
financial and/or non-proprietary information
deemed reasonably necessary or useful by the
Page 48
Hokuli' a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 49 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
other party or parties; in delivering prompt
payment of any monies required to be paid to the
other party or parties under this Agreement; and
to process, in a timely manner, any and all
construction, permit or other applications relating
to the Project, the Bypass Highway or the
Coastline Park. With regard to any application(s)
submitted by OCEANSIDE to any other
governmental orquasi-governmental agency
having jurisdiction over the Project, the Bypass
Highway or the Coastline Park for any and all
appropriate Approvals required for the
construction or development of the Project, the
Bypass Highway, or the Coastline Park the
COUNTY shall no[ impede OCEANSIDE in
obtaining such Approvals.
Paragraph No. 32 ASSIGNMENT. OCEANSIDE shall have the Hokuli'a will comply with this requirement.
Assignment right to sell, assign or transfer, in whole or in
part, this Agreement, and all of its rights, duties
and obligations hereunder, to any entity,
subsidiary, or partner of OCEANSIDE at any
time during the term of this Agreement upon
written notice to the Director. Such a transfer
shall be considered anon-substantive or technical
amendment that does not alter the material terms
Page 49
Hokuli'a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 5-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Pagc 50 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
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of this Agreement and which does not require
action by the County Council, nor the approval of
the Office of the Mayor.
Paragraph No. 33 ENFORCEMENT. Unless terminated pursuant Hokuli'a will comply with this requirement.
Enforcement to Paragraph (25/ or canceled pursuant to
Paragraph (27) herein, this Agreement, as
amended or modified, shall be enforceable by any
party hereto, or its successors in interest or
assigns, notwithstanding any change in any
applicable law, which alters or amends the Land
Use Regulations or Approvals, the Development
Agreement Statute, the Development Agreement
Code, or the Development Agreement Rales, that
is adopted by the COUNTY or any other party to
this Agreement after the date of the Enacting
Resolution.
Paragraph No. 34 WAIVER. The failure of any party to this Hokuli'a will comply with this requirement.
Waiver Agreement to .insist upon strict performance of
any of the covenants or conditions herein, or to
exercise any option herein conferred, or the
waiver of a breach, shall not be deemed a waiver
of such party's right to demand strict compliance
by such other party in the future, nor shall it be
Page 50
Hokuli~a
Development Agreement (Effective Date: April 20, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Pagc 51 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
deemed a relinquishment or waiver for the future
of any rights, covenants, conditions or options
under this Agreement.
Paragraph No. 35 GENDER. The terms "COUNTY" and Hokuli'a will comply with this requirement.
Gender "OCEANSIDE", wherever used herein, or any
pronoun used in place thereof, shall mean and
include the masculine or feminine or neuter
gender, the singular or plural number, jointly and
severally, individuals, firms or corporations, and
their and each of their respective successors, legal
representatives and assigns, according to the
context thereof.
Paragraph No. 36 No PARTY DEEMED DRAFTER. No party Hokuli'a will comply with this requirement.
No Party Deemed shall be deemed the drafter of this Agreement. if
Drafter this Agreement is ever construed by a court of
law, such court shall not construe any provision
thereof against any party as drafter.
Paragraph No. 37 No PARTNERSHIP. Nothing contained in this Hokuli'a will comply with this requirement.
No Partnership Agreement is intended, nor shall be construed to
establish an agency relationship, a partnership or
a joint venture between the arties hereto.
Paragraph No. 38 APPLICABLE LAW. This Agreement shall be Hokuli'a will comply with this requirement.
Page 51
Hokuli a
Development Agreement (Effective Date: Apri12Q 1998)
TMK: 7-9-012: 003, 004, 011 and TMh: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 52 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
Applicable Law governed by [he laws of the State of Hawaii both
as [o interpretation and performance.
FORCE MAJEURE. In the eventthat either Hokuli'a will comply with this requirement.
Paragraph No. 39 party shall be delayed or hindered in or prevented
Force Maejure from the performance of any duties, obligations
or conditions provided for and required under this
Agreement by reason of strikes or other
disturbances, lockouts, labor troubles, riots,
insurrection, war or civil disturbance, fire or
earthquake, tidal wave, acts of God, the elements,
government legislation, regulation or controls, or
economic controls, making it impossible to
complete any duties, obligations, or conditions
provided for and required under this Agreement,
then performance of such duty, obligation, or
condition shall be excused for the period of the
delay and the period for the performance of any
such duty, obligation, or condition shall be
extended for a period equivalent to the period of
such delay. Under no circumstances shall this
provision operate or be construed to excuse either
party from the payment of any sum required to be
paid to [he other party.
OCEANSIDE or the COUNTY shall notify the
Page 52
Hokuli'a
Development Agreement (Effective Date: Apri120,1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 53 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
other in writing of any force majeure event upon
which OCEANSIDE or the COUNTY intends to
rely upon for an extension of the period for the
performance of any such duty, obligation, or
condition, and shall also notify the other in
writing of the date
on which any such force majeure event ended.
Paragraph No. 40 GOOD FAITH. Either patty to this Agreement Hokuli'a will comply with this requirement.
Good Faith shall perform its duties under this Agreement in
good faith.
Paragraph No. 41 COMPUTATION OF PERIODS. All periods Hokuli'a will comply with this requirement.
Computation of of time referred to in this Agreement shall include
Periods all Saturdays. Sundays and state or
national holidays; provided, however, that if the
date or last date to
perform any act or give any notice with respect to
this Agreement shall fall on a Saturday, Sunday
or state or national holiday, such act or notice
may be timely performed or given on the next
succeeding day which is not a Saturday, Sunday
or state or national holiday.
Paragraph No. 42 SEVERABILITY. If any provision of this Hokuli'a will comply with this reyuirement.
Severabili[v Agreement, or the ap lication thereof to any
Page 53
Hokuli~a
Development Agreement (Effective Date: April 20, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14,2004
Pagc 54 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this
Agreement and the application of any provisions
thereof to other persons or circumstances shall
not be thereby affected.
Paragraph No. 43 ENTIRE AGREEMENT. This Agreement Hokuli'a will comply with this requirement.
Entire Agreement embodies the entire agreement of the parties
hereto and supersedes any other agreements or
understandings with respect to the subject matter
hereof that may ever have existed between the
parties.
Paragraph No. 44 SECTION AND PARAGRAPH HEADINGS. Hokuli'a will comply with this requirement.
Section and Section and paragraph headings are inserted only
Paragraph Headings for convenience and reference and in no way
define, limit, extend or describe the scope of
intent of this Agreement, or any provisions
thereof.
Paragraph No. 45 ADMINISTRATIVE ACT. The approval of this Hokuli'a will comply with this requirement.
Administrative Act Agreement shall, under Development Agreement
Statute HRS section 46-131, be deemed an
administrative act of the COUNTY and any and
all governmental agencies or entities a to this
Page 54
Hokuli' a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 55 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
Agreement.
Paragraph No. 46 BINDING EFFECT. The terms and conditions Hokuli'a will comply with this requirement.
Binding Effect of this Agreement shall be binding upon, and the
benefits of this Agreement shall inure to, all
successors in interest to and assigns of the parties
hereto, and the covenants contained herein shall
run with the land.
Paragraph No. 47 ENTITIES OBLIGATED. Except as provided Hokuli'a will comply whit this requirement.
Entities Obligated [o the contrary herein, individual lot purchasers or
builders, mortgagees or beneficiaries shall not
have the obligation or duty under this Agreement
to perform the obligations of OCEANSIDE or
other affirmative covenants of OCEANSIDE
hereunder, or to guarantee such performance.
Paragraph No. 48 PARTIAL RELEASE. Any terms and Hokuli'a will compl}~ with this requirement.
Partial Release restrictions of this Agreement which are satis5ed
as of [he annual review shall be released upon
request of OCEANSIDE; provided that any such
release shall be in recordable form that
OCEANSIDE may record in the Office of the
Assistant Registrar of the State of Hawaii and/or
the State of Hawaii Bureau of Conveyances, as
Page 55
Hokuli' a
Development Agreement (Effective Date: Apri12Q, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
.January 14, 2004
Page 56 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
applicable, within twenty (20) days of the
execution of such release.
Paragraph No. 49 COMPLIANCE CERTIFICATE. If, during the
Com Hance Hokuli'a will comply with this requirement.
P annual review conducted pursuant [o Paragraph
Certificate (24), herein, the Platming Department finds
compliance by OCEANSIDE with the terms of
this Agreement, the Planning Department shall
issue a certificate of compliance in recordable
form that OCEANS[DE may record in the Office
of the Assistant Registrar of the Land Court of
the Stale of Hawaii and/or the State of Hawaii
E3ureau of Conveyances, as applicable.
Paragraph No. 50 SATISFACTION. Upon the satisfaction of the
Satisfaction Hokuli'a will comply with this requirement.
terms and conditions of this Agreement, and upon
request by the Office of the Mayor and
OCEANSIDE, the County Council shall propose
and approve a resolution indicating that this
Agreement has been satisfied.
Paragraph No. 51 FINAL RELEASE. The COUNTY agrees that
Final Release Hokuli'a will comply with this requirement.
upon written request of OCEANS[DE and
payment of all fees and performance of the
obli a[ions of OCEANS[DE under this
Page 56
Hokuha
Development Agreement (Effective Date: April 20, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 57 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
Agreement with respect to all or any portion of
the Property, the COUNTY shall execute and
deliver to OCEANSIDE appropriate release(s) of
OCEANSIDE from any and all further
obligations under this Agreement in such form
and substance necessary to effect such release
and to record the same with the Office of the
Assistant Registrar of the Land Court of the State
of Hawaii and/or the State of Hawaii Bureau of
Conveyances, as applicable; provided that any
such release shall be recorded within twenty (20)
days of its execution.
Paragraph No. 52 ADMINISTRATION OF THIS Hokuli'a will comply with this requirement.
Administration of AGREEMENT. The Planning Department shall
this Agreement be responsible for the overall administration of
this Agreement.
Paragraph No. 53 RECORDATION. The Planning Department, or Hokuli'a will comply with this requirement.
Recordation such other executive agency designated in writing
to OCEANSIDE by the Mayor, shall file or
record copies of this Agreement and any
amendment or modification hereto in the Office
of the Assistant Registrar of the Land Court of
[he State of Hawaii or in [he Slate of Hawaii
Page 57
Hokuli a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Page 58 of 60
Paragraph No. Paragraph Due Status Date of Comments/Next Step
Date Compliance
Bureau of Conveyances, or both, whichever is
applicable, within twenty (20) days after the
execution of this Agreement, or twenty (20) days
after any amendment hereto.
Paragraph No. 54 COUNTERPARTS. The parties hereto agree Hokuli'a will comply with this requirement.
Comnerparts that this Agreement may be executed in
counterparts, each of which shall be deemed an
original, and said counterparts shall together
constitute one and the same instrument, binding
all of the parties hereto, notwithstanding that all
the parties are not signatories to the original or
the same counterparts. For all purposes, ~
including, without limitation, the recordation,
filing and delivery of this Agreement, duplicate,
unexecuted and unacknowledged pages of the
counterpart may be discarded and the remaining
pages assembled as one Q) document.
Paragraph No. 55 FACSIMILE DOCUMENTS. The parties agree Hokuli'a will comply with this requirement.
Facsimile to accept facsimile executed documents as if they
Documents were originally signed documents. Any party
submitting facsimile signatures shall provide the
other parties with originally signed replacement
_ documents within five (5) business da s from the
Page 58
Hokuli a
Development Agreement (Effective Date: Apri120, 1998)
TMK: 7-9-012: 003, 004, 011 and TMK: 8-1-004: portion of 003)
2004 Annual Report
January 14, 2004
Pagc 60 of 60
Paragraph No. Paragraph Due Status Date of C'omments/Next Step
Date Compliance
Page 60
Hokulia
Change of Zone Ordinance No. 96-7 -January 15,1996
2004 Annual Report
January 14, 2004
Yage 1 of 12 ~ ~ n ^q 1 ~ 1
Condition Condition ~ Status Compliance
~ No. ~
~ Ord. 96-7 A. The applicant, successors or assigns shall be responsible for On-Going Hokulia agrees that it will comply with all
~ complying with all of the stated conditions of approval. stated conditions of approval.
L.
Ord. 96-7 B. The applicant, successors or assigns shall be responsible for On-Going Hokulia will comply with this requirement
complying with all requirements of Chapter 205, Hawaii Revised
Statutes, relating to permissible uses within the State Land Use ~
Agricultural District.
i
Ord. 96-7 C. ~ The effectuation of the water commitment rights in the Complied Assignment of rights to water commitment
Kealakekua Source Agreement to the current landowners of the units was executed on March 17, 1999.
~ subject property with the acceptance of the prevailing facilities
charge for the 499 units of water by the Department of Water
Supply of the required water commitment payment shall be in
accordance with its "Water Commitment Policy". Prior to In Process Hokulia will comply with this requirement
approval of the 500`" lot within the development area, the
applicant shall secure the necessary "Water Commitments" and
comply with the Department of Water Supply's "Water
Commitment Policy" for the remaining units of water for the
proposed subdivision and golf course development.
Ord. 96-7 D. Subdivision plans for any portion of the subject property for this Complied FSA for Phase I of SUB 98-124 granted on
change of zone shall be submitted to the Planning Department Sept. 18, 1999
and Final Subdivision Approval secured within five (5) years ~
from the effective date of this ordinance.
Ord. 96-7 E. A Wastewater disposal system shall be constructed in a manner In Pxacess Hokuli' a will comply with this requirement.
meeting with the approval of the State Department of Health
and/or the Department of Public Wozks, whichever is applicable. Wastewater disposal system was bonded as i
part of subdivision improvements for Phase 1
Page I
Hokulia
Change of Zone Ordinance No. 96-7 -January 15,1996
2004 Annual Report
January 14, 2004
Page 2 of 12
Condition Condition Status
Compliance
No.
and 2 of Hokuli a and are currently under
construction.
Ord. 96-7 F. All electrical and communication utilities and systems within the In Process Hokuli'a will comply with this requirement.
subject property shall be placed underground ,with the exception Utility improvements for Phase 1 and 2 were
of the main 69 KV transmission line from the Mamalahoa bonded and Phase I improvements are
Highway to the proposed electrical substation site. currently under construction.
Ord. 96-7 G A Flood Study of the subject property shall be submitted to the Complied Flood and Drainage Study for Phase 1 and 2
Planning Department in conjunction with plans submitted for areas were submitted August 4. 1999
subdivision review for any portion of the subject property.
Drainage improvements shall be constructed in a manner meeting
with the approval of the Department of Public Works, prior to the In Process Hokuli' a will comply with this requirement.
issuance of Final Subdivision Approval for the subject property.
Ord. 96-7 H. An Archaeological Mitigation and Interpretation Plan shall be Complied Letters dated 9/7/99 and 9/15/99 from SIIPD
prepared and submitted for approval by the Planning Director, in approved the Data Recovery, Preservation and
consultation with the Department of Land and Natural Resources- Interpretive, and Monitoring Plaus,
Historic Preservation Division and Hawaiian Community respectively.
organizations, prior to submitting plans for subdivision review.
The Plan shall consist of three subplans:
1. an archaeological data recovery plan for the sites to undergo Complied Hokuli' a will comply with the requirements
data recovery, of the approved mitigation plan prior to or in
2. a detailed interim protection/preservation plan for the sites to Complied conjunction with any land alternation.
undergo preservation ,and
3. an interpretation plan which shall include buffer zones, In Process
signage and long range preservation concerns which may be
submitted at a later date. Approved mitigation measures shall be
implemented prior to or in conjunction with any land alterations
Page 2
lEIokulia
Change of Zone Ordinance No. 96-7 -January 15, 1996
2004 Annual Report
January 14, 2004
]Page 3 of 12
Cord tion Condition Status Compliance ~
within the subject property. ~
Ord. 96-7 I. Should any unidentified sites or remains such as artifacts, shell, On-Going Hokuli'a will com 1 with re uirement.
Py 9
bone, or charcoal deposits, human burials, rock or coral
alignments, pavings or walls be encountered, work in the
immediate area shall cease and the Planning Director shall be
immediately notified. Subsequent work shall proceed upon an
archaeological clearance from the Planning Director when it finds
that sufficient mitigative measures have been taken. i
Ord. 96-7 J. A Solid Waste Management Plan shall be prepared meeting with Complied Solid Waste Management Plan approved
the approval of the Department of Public Works prior to 10/31/00.
submitting plans for subdivision review. The Plan shall include,
but not limited to, the management of construction solid waste as
well as operating and domestic solid waste generated by the ~
proposed development. Approved recommendations and hi Process Hokuli a will comply with this requirement.
mitigation measures shall be implemented at a time and in a
manner meeting with the approval of the Department of Public
Works.
Ord. 96-7 K. A final Comprehensive Public Access Plan to be developed in Complied Letter dated Tan 29, 1999 from Director
consultation with community groups, shall be submitted to and approved the public access plan.
approved by the Planning Director prior to Final Subdivision
approval, or any land alteration activity, whichever comes first.
The final comprehensive public access plan shall be developed in
consultation with the Planning Director and the Department of
Land and Natural Resources and shall include mauka-tnakai and
lateral shoreline accesses, parking area(s), signage, emergency
response considerations, restrictions on use (if any), provision of Com lied Hokuli'a will comply with this requirement.
Page 3
Hokulia
Change of Zone Ordinance No. 96-7 -January 15,1996
2004 Annual Report
January 14, 2004
Page 4 of 12
Condition Condition Status Compliance
No.
recreational and restroom facilities at appropriate locations, and Hokuli~ a has secured SMA No. 401 on May
related improvements; provided, that the construction of the 5, 2000 and CDUA HA-2977 on November
coastline park and access ways shall be subject to the obtaining of 17, 2000 approvals for the shoreline park.
all necessary discretionary permits (e.g., Conservation District
Use Approval, Special Management Area Use Permit, etc.);
provided, further that the applicant shall be responsible to
comply with the following terms and conditions:
1. An azea comprising twenty-five percent (25%) of the total Complied First Phase opened August 1, 2002.
park azea, as shown on Exhibit "E" attached hereto and made a
part hereof, shall be developed and improved by the applicant or
its agent in phases within five (5) years from the date of Final
Subdivision Approval is obtained on the subject property. The
first phase shall be completed and open to the public within thirty
(30) days following the opening of the golf course;
2. Upon opening of the first phase of the pazk azea, a minimum Complied First Phase opened August 1, 2002.
of twenty-five (25) public parking stalls in addifion to parking ~
stalls for residents, guests, and employees within the subject
property and the applicant's adjacent lands at the principal
shoreline access parking area(s), signage and provisions for
public access for night fishing and marine food gathering
purposes over designated vehicular and pedestrian access routes
subject to restrictions which limit said uses to recreation uses
~ only, and other restrictions which provide for the health and
safety of the general public and residents alike. The number of
parking stalls shall be increased commensurately with the
approval of additional park phases in accordance with the public
access plan; and
3. The public shoreline access plan shall also integrate where In Process Hokulia will comply with this requirement.
~ appropriate, any public accesswa (s) to interpretive trail
Page 4
Hokulia
Change of Zone Ordinance No. 96-7 -January 15,1996
2004 Annual Report
January 14, 2004
Rage 5 of 12
f Condition Condition Status
l Compliance i
No.
system(s) and to the historical and azchaeological sites to be
approved by the Planning Director, in consultation with the
i
Department of Land and Natural Resources in conjunction with ~
the detail mitigation plan for the pazk area situated in the ~
Conservation District.
Ord. 96-7 L. Prior to final approval of a small lot subdivision plat within the Complied Grant of Public Access Easement was
subject property, the applicant shall convey to the County of recorded with the Bureau of Conveyances on
Hawaii by way of a perpetual easement the right to public access December 29, 1999.
and recreational use of its privately owned coastline pazk and
trails; provided, that restrictions will be allowed to be established
by the applicant, subject to the approval of the Planning Director,
to promote public health and safety and the general security of
the premises for residents and guest of the project to protect the
area's pristine condition, and to minimize any liability to the
applicant, pursuant to Chapter 520, Section 520-4, Hawaii
Revised Statutes. The applicant shall retain ownership of its ii
coastline park and trials in fee simple and maintain all lands in
the coastline park area and operate such facility for public
recreational use in accordance with the above terms and
conditions. This condition shall not be applicable to any
roadway, trail or other rights-of--way, which are deemed public
highways or trails as defined in Chapter 264, Hawaii Revised
Statutes.
Ord. 96-7 M. Roadway improvements and access (es) to the subject property, Complied i
including all plans and construction, shall meet with the approval j
of the Department of Public Works. Prior to the issuance of Final
Subdivision A royal for any portion of the subject pro erty, the
Page 5
Hokulia
Change of Zone Ordinance No. 96-7 -January 15, 1996
2004 Annual Report
January 14, 2004
Page 6 of 12
f Condition Condition Status
l No. Compliance
applicant shall:
1. Construct the ehannelization and signalization of the Complied Haleki'i Street intersection improvements at j
Mamalahoa Highway-Haleki'i Street intersection; Mamalahoa Highway were completed and in ii
2. Determine the final right-of-way alignment of the entire Complied operation as of January 11, 1999. DPW ~
Mamalahoa Highway Bypass between the approximate vicinity approved Bypass alignment on .Tanuary 1997.
of Keauhou and Captain Cook, including its intersection areas Metes and Bounds of Mamalahoa Highway
and its acquired ownership or control. The applicant shall Bypass Right-of-Way and Evidence of
provide the Planning Director with a metes and bounds Control were submitted to the County on
description of each road right-of--way segment involved and September 10, 1999.
evidence of its ownership or control as deemed necessary by the
Planning Director. In lieu of the applicant obtaining or acquiring ~
ownership or control of any segment of the Mamalahoa Highway ~
Bypass, the requirement shall be deemed fulfilled upon the
County's formal initiation of condemnation action(s) for such
segments and an agreement has been entered into between the
applicant and the County providing for the applicant's
reimbursement to the County for the acquisition of the lands
conderrmed;
3. Construct the Mamalahoa Highway Bypass in its entirety Complied
between the approximate vicinity of Keauhou and Captain Cook, These improvements were bonded as part of
consisting of two lanes with sufficient right-of--way for a total of Phase I in accordance with Section 23-81 of
four lanes, provided further, that the section of the Mamalahoa the Subdivision Code and Paragraph 13 of
Highway Bypass between Keauhou and Haleki'i Street shall be Development Agreement No. 1
completed and available for public use prior to the occupancy of ~
any dwelling unit within the entire project area;
4. Construct the extension of Haleki'i Street through the subject Complied
property as generally reflected in Exhibit "B", which phasing of These improvements were bonded as part of
improvements shall be approved by the Department of Public Phase 1 in accordance with Section 23-81 of
Works. If, before the completion and opening of the entire the Subdivision Code and Paragraph 13 of
Page 6
Hokulia
Change of Zone Ordinance No. 96-7 -January 15,1996
2004 Annual Report
.January 14, 2004
Page 7 of 12
Condition Condition Status Compliance
No.
Mamalahoa Highway Bypass, a portion of said Bypass is Development Agreement No. 1.
completed and opened, and said portion provides a connection to
Haleki'i Street, a barricade or breakaway gate meeting with the
requirements of the Department of Public Works, shall be
installed by the applicant as part of the required Haleki'i Street
improvements. The purpose of this condition is to prevent the
use of Haleki'i Street as a vehiculaz thoroughfaze between the
existing Mamalahoa Highway Bypass and a portion of the
Mamalahoa Highway Bypass until the entire proposed
Mamalahoa Highway Bypass between the approximate vicinity
of Keauhou and Captain Cook has been completed and opened
for general public use; and
5. Provide roadway stub-outs, generally shown in Exhibit "B", to Complied These roadway stubouts have been
provide future connections between the subject property and the incorporated on the Final Plat Map for
adjacent properties to the north and south; provided that such Subdivision No. 7168. These improvements
stubouts shall be constructed in accordance with the construction were bonded as part of Phasc 1 in accordance ~I
phasing as approved by the Department of Public Works. with Section 23-81 of the Subdi~~sion Code
The applicant shall construct the Mamalahoa Highway Bypass to and Paragraph 13 of Development Agreement
standards set forth by the Department of Public Works for Alii No. 1.
Highway with such modifications as maybe deemed necessary
by the Department of Public Works for Alii Highway with such ~
modifications as may be deemed necessary by the Department of
Public Works. The applicant shall provide a landscape buffer
along highway sections within five hundred feet of existing
dwellings, as required by the chief engineer, to reduce the
impacts of noise and light on the residents therein and to
generally beautify the highway appeazance in such locations;
provided that the applicant shall enter into a reimbursement
~ agreement with the County which sets for the terms and
Page 7
]Hokulia
Change of Zone Ordinance No. 96-7 -January 15, 1996
2004 Annual Report
January 14, 2004
gage 8 of 12
Condition Condition Status Compliance
No.
conditions of reimbursement for costs incurred for the
construction, land acquisition and design of the Mamalahoa
Highway Bypass out of funds paid to the state and/or county by
other developers or landowners whom the county may determine
as benefiting from the Mamalahoa Highway Bypass and which
funds are available to the county for such purpose; and provided ~
further, that the total amount of reimbursement due to the i
applicant shall not exceed the total cost of the land acquisition,
design and construction of the Mamalahoa Highway Bypass
incurred by the applicant, less the pro rata portion attributed to
the subject property;
Ord. 96-7 N. In lieu of actual construction of infrastructural improvements as On-Going Infrastructural improvements were bonded as
required under Conditions E, G, J, K and M, the applicant may part of Phase 1 and 2 Final Subdivision
enter into an agreement with the Planning Director and the Approval.
Department of Public Works and the Department of Water
Supply, if applicable, to assure the county that the infrastructural
improvements will be constructed together with the appropriate
bond, surety or other security deemed acceptable to the Planning
Director and approved by the Corporation Counsel. Upon
execution of such agreement and filing of the security with the
County, if applicable, Final Subdivision Approval for the subject
property or portions thereof shall be granted prior to the actual
construction of required infrastructural improvements.
Ord. 96-7 O. The applicant shall make its fair shaze contribution to mitigate the Complied Fair share requirements were complied with
potential regional impacts of the subject property with respect to for Phase 1 and Phase 2 of the project.
parks and recreation, fire, police, solid waste disposal facilities Hokuli'a will comply with this requirement
and roads. The amount of the fair share contribution shall be the for future phases of the project. Fair share
Page 8
1Hokulia
Change of Zone Ordinance No. 96-7-January 15,1996
'1004 Annual Report
January 14, 2004
]Page 9 of 12
Condition Condition
Status Compliance
No.
r
sum which is the product of multiplying the number of lots payments made for Phase 1 in conjunction
proposed to be subdivided by the amounts allocated hereinbelow with final subdivision applications.
for each such lot, and shall become due and payable prior to final
subdivision approval for any portion of the subject property or its
increments. If the subject property is subdivided in two or more
increments, the amount of the fair shaze contribution due and
payable prior to final subdivision approval of each increment
shall be a sum calculated in the same manner according to the
number additional proposed lots in each such increment. The fair
share contribution for each lot, except for lots lazger than ten
acres in size or which are committed exclusively for golf course
and park purposes, shall be based on the maximum allowable
density of building sites as determined by the zoning of such lot.
The fair share contribution in a for of cash, land, facilities, or any
combination thereof acceptable to the director in consultation
with the affected agencies shall have a maximum combined value
of $7,239.16 per lot. Based upon the applicant's representation
I
of intent to subdivide and develop up to 4001ots, the indicated
total fair share contribution is $2,895,664.00. however, the total
amount shall be increased or reduced in proportion with the
actual number of subdivided lots according to the calculation and
payment provisions set forth in this Condition O. The fair share
contribution shall be allocated as follows:
(1) $3,490.85 per lot, for an indicated total of $1,396,340.00 to Complied Phase 1 and 2
the County to support park and recreational improvements and
facilities;
(2) $168.40 per each lot, for an indicated total of $67,360.00 to Complied Phase 1 and 2
the County to support police facilities;
(3) $332.61 per lot, for an indicated total of $133,044.00 to the Com lied Phase 1 and 2
Page 9
Hokulia
Change of Zone Ordinance No. 96-7 -January 15,1996
x004 Annual Report
January 14, 2004
Page 10 of 12
Condition Condition Statns
No. Compliance
County to support fire facilities;
(4) $145.62 per lot, for an indicated total of $58, 248.00 to the Complied Phase 1 and 2
County to support solid waste facilities;
(5) $3,101.68 per lot, for an indicated total of $1,240,672.00 to Complied Phase 1 and 2
the County to support road and traffic improvements.
The fair shaze contribution described above shall be adjusted
annually beginning three years after the effective date of this
ordinance, based on the percentage change in the Honolulu
Consumer Price Index (HCPI). In lieu of paying the fair share
contribution, the applicant may construct improvements/facilities
related to pazks and recreation, fire, police, solid waste disposal
facilities, and roads within the region impacted by the proposed i
development, subject to the approval of the Planning Director.
The cost of constructing the improvements required in Conditions
J, K and M shall be credited against the sum specified in
Condition O(4) for solid waste facilities, Condition O(1) for
parks and recreation, and in Condition O(5), for road and traffic
improvements. For purposes of administering Condition O, the
value of land contributed or the cost of any improvements
required or made in lieu of the fair shaze contribution shall be
such amount as approved by the Planning Director, upon
consultation with the appropriate agencies.
Ord. 96-7 P. Comply with al] applicable laws, rules, and requirements, On-Going Hokulia will comply with al] applicable laws,
including those of the Department of Health, Fire, State rules and requirements.
Department of Education and the Department of Water Supply.
Ord. 96-7 Q. Should the Council adopt a Unified Impact Fees Ordinance On-Going Hokulia acknowledges that required
setting forth criteria for the im osition of exactions or the exactions may be credited towards the
Page 10
Hokulia
Change of Zone Ordinance No. 96-7 -January 15,1996
2004 Annual Report
January 14, 2004
Page 11 of 12
Condition Condition Status Compliance
No.
assessment of impact fees, conditions included herein shall be requirements of an Unified Impact Pee
credited towards the requirements of the Unified Impact Fee Ordinance should it be adopted.
Ordinance.
~ Ord. 96-7 R. An annual progress report shall be submitted to the Plaxming On-Going Hokulia will provide annual reports to the
Director prior to each anniversary date of the approval of this County in accordance with this requirement.
change of zone. The report shall address in detail the status of
the development and the compliance with the conditions of
approval. This condition shall remain in effect until all of the
conditions of approval have been complied with and the Planning
Director acknowledges that further reports are not required.
Ord. 96-7 S. An extension of time fox the performance of conditions within the On-Going Hokulia acknowledges that a time extension
ordinance, with the exception of Condition C, maybe granted by for compliance with the conditions of
the Planning Director upon the following circumstances: approval maybe granted by the Director
1. the non-performance is the result of conditions that could not
have been foreseen or are beyond the control of the applicant,
successors or assigns, and that are not the result of their fault or
negligence;
2. granting of the time extension would not be contrary to the
General Plan or Zoning Code.
3. granting of the time extension would not be contrary to the
original reasons for the granting of the change of zone;
4. the time extension granted shall be only for a period not to
exceed the period originally granted for performance (i.e., a
condition to be performed within one year may be extended for
up to one additional year); and
5. Should the Applicant require an additional extension of time,
the Planning Director shall submit the A licant's request to the
Page 11
Holculia
Change of Zone Ordinance No. 96-7 -January 15,1996
2004 Annual Report
January 14, 2004
Page 12 of 12
Condition Condition
No. Status Compliance
County Council for appropriate action.
Should any of the conditions not be met or substantially complied
with in a timely fashion, the Director shall initiate rezoning of the
area to its original or more appropriate designation.
Page 12
Hokuli'a
Change of Zone Ordinance No. 96-8 -January 15,1996
2004 Annual Report
January 14, 2004
Page l of 14 ~ •,i ~ - r; 9'
Condition Condition
No. ' ~tatns Compliance
Ord. 96-8 A. The applicant, successors or assigns shall be responsible for On-Going Hokuli'a agrees that it will comply with al] stated
complying with all of the stated conditions of approval. conditions of approval.
I Ord. 96-8 B. The effective date of the rezoning shall be upon:
(1) the execution of an agreement, between the applicant, Lyle Complied Effective date of zoning is March 17, 1995
Anderson, and the County through its Department of Water Assignment of rights to water commitment units
Supply and Planning, to assign water commitment rights in the was executed on March 17, 1995.
Kealakekua Source Agreement to the current landowners of the
subject property within one-hundred-eighty-(180) days from the
effective date of this ordinance; provided that a maximum
ninety (90) day extension may be granted by the Planning
Director with reasonable and sufficient justification; and
(2) the acceptance by the Deparhnent of Water Supply of the Complied
required water commitment payment in accordance with its
"Water Commitment Policy" within one-hundred-eighty (180)
days from the effective date of this ordinance.
Ord. 96-8 C. Subdivision plans for any portion of the subject property shall Complied Tentative Subdivision Approval for Phase I of
I be submitted to the Planning Department and Tentative Hokulia was granted on December 9, 1999.
Approval secured within four (4) yeazs from the effective date Revised Tentative Approval granted on July 29,
of this rezoning as determined in Condition B; Final 1999
Subdivision Approval shall be secured within five (5) years
from the effective date of this rezoning as determined in
Condition B. For the purpose of this ordinance, Final Complied i Final Subdivision Approval for Phase I of SUB 98-
Subdivision Approval shall be defined as the subdivision of any 124 granted on Sept. 18, 1999
agricultural zoned lot to a lot less than twenty (20) acres in size I,
within the subject property.
Page No. 1
Hokuli'a
Change of Zone Ordinance No. 96-8 -January 15,1996
2004 Annual Report
January 14, 2004
Page 2 of 14
Condition Condition Status
No Compliance
Ord. 96-8 D. A wastewater disposal system shall constructed in a manner In Process Hokuli'a will comply with this requirement.
meeting with the approval of the State Deparhnent of Health
and/or the Department of Public Works, whichever is Wastewater disposal system was bonded as part of
applicable. subdivision improvements for Phase 1 and 2 of
Hokuli'a and is currently under construction.
Ord. 96-8 E. All electrical and communication utilities lines within the In Process Hokuli'a will comply with this requirement.
subj ect property shall be placed underground, with the
exception of the main 69 KV transmission line from the Utility improvements for Phase 1 and 2 were
Mamalahoa Highway to the proposed electrical substation site. bonded and Phase I is currently under construction.
Ord. 96-8 F. A Flood Study of the subject property shall be submitted to the Complied Flood and Drainage Study for Phase 1 and 2 areas
Planning Department in conjunction with plans submitted for was submitted August 4, 1999.
subdivision review for any portion of the subject property.
~ Drainage improvements shall be constructed in a manner In process Hokuli'a will comply with this requirement
i meeting with the approval of the Department of Public Works,
prior to the issuance of Final Subdivision Approval for the I
subj ect property.
Ord. 96-8 G. An archaeological mitigation and interpretation plan shall be Complied Letters dated 9/7/99 and 9/15/99 from SHPD
prepazed and submitted for approval by the Planning Director, approved the Data Recovery Plan and the ~
in consultation with the Department of Land and Natural Preservation and Interpretive and Monitoring
Resources-Historic Preservation Division, prior to submitting Plans, respectively.
plans for subdivision review. The Plan shall consist of three
subplans:
(1) an archaeological data recovery plan for the sites to Complied
undergo data recovery,
(2) a detailed interim protection/preservation plan for the sites Complied Hokuli'a will comply with the requirements of the
to undergo preservation; and approved mitigation plan prior to or in conjunction
Page No. 2
Hokuli'a
Change of Zone Ordinance No. 96-5 -January 15,1996
2004 Annual Report
January 14, 2004
Page 3 of 14
Condition Condition Status Compliance
No.
(3) an interpretation plan which shall include buffer zones, In Process with any land alternation.
signage and long range preservation concerns which maybe
submitted at a later date. Approved mitigation measures shall
be implemented prior to or in conjunction with any land ~
alterations within the subject ro ~
] P P~Y~
Ord. 96-8 H. A final comprehensive public access p]an, to be developed in Complied Letter dated Jan 29, 1999 from Director approved ~
consultation with community groups, shall be submitted to and the public access plan. i
approved by the Planning Director prior to final subdivision
approval, or any land alteration activity, whichever comes fnst.
The ftnal comprehensive public access plan shall be developed
in consultation with the Planning Director and the Department Complied Hokuli'a will comply with this requirement.
of Land and Natural Resources and shall include mauka-makai Hokuli'a has secured SMA No. 401 on May 5,
and lateral shoreline accesses, parking area(s), signage, 2000 and CDUA HA-2977 on November 17, 2000
emergency response considerations, restrictions on use (if any), approvals for the shoreline park.
provision of recreational and restroom facilities at appropriate
locations, and related improvements; provided that the
construction of the coastline park and access ways shall be
subject to the obtaining of all necessary discretionary permits
(e.g. Conservation District Use Approval, Special Management
Area Use Permit, etc.); provided further, that the applicant shall
be responsible to comply with the following terms and
conditions:
(1) An area comprising twenty-five percent (25%) of the total Complied First phase opened August 1, 2002.
park area, as shown on Exhibit "E" attached hereto and made a
part hereof, shall be developed and improved by the applicant
or its agent in phases within five (5) years from the date Final
Subdivision Approval is obtained on the subject property. The
first phase shall be completed and open to the ublic within
Page No. 3
Hokuli'a
Change of Zone Ordinance No. 96-8 -January 15,1996
2004 Annual Report
January 14, 2004
Page 4 of 14
Condition Condition Status Compliance
No.
thirty (30) days following the opening of the golf course;
(2) Upon opening the first phase of the park area, a minimum Complied First phase opened August 1, 2002
of twenty-five (25) public pazking stalls in addition to pazking
stalls for residents, guests, and employees within the subject
property and the applicant's adjacent lands at the principal
shoreline access arkin areas si a e, and ~
P g , gn g provisions for
public access for night fishing and marine food gathering
purposes over designated vehiculaz and pedestrian access i
routes subject to restrictions which provide for the health and
safety of the general public and residents alike. The number of
parking stalls shall be increased commensurate with the
approval of additional park phases in accordance with the
public access plan; and
(3) The public shoreline access plan shall also integrate where In Process i
appropriate, any public accessway(s) to interpretive trail
system(s) and to the historical and archaeological sites to be
approved by the Planning Director, in consultation with the
Department of Land and Natural Resources in conjunction with
the detail mitigation plan for the park area situated within the
Conservation District.
~ Ord. 96-8 I. Prior to final approval of a small lot subdivision plat within the Complied Grant of Public Access Easement was recorded
subject property, the applicant shall convey to the County of with the Bureau of Conveyances on December 29,
Hawaii by way of a perpetual easement the right to public 1999.
access and recreational use of its privately owned coastline
park and trails; provided, that restrictions will be allowed to be ~
established by the applicant, subject to the approval of the
Planning Director, to promote public health and safety and the
general security of the premises for residents and guest of the
Page No. 4
Hokuli"a
Change of Zone Ordinance No. 96-8 -January 15,1996
2004 Ainnual Report
January 14, 2004
Page 5 of 14
Condition Condition Status
No. Compliance
project to protect the azea's pristine condition, and to minimize ~
any liability to the applicant, pursuant to Chapter 520, Section
205-4, Hawaii Revised Statutes. The applicant shall retain
ownership of its coastline pazk and trails in fee simple and
maintain all lands in the coastline park area and operate such
facility for public recreational use in accordance with the above
terms and conditions. This condition shall not be applicable to
any roadway, trail or other rights-of--way, which are deemed
public highways or trails as defined in Chapter 264, Hawaii ~
Revised Statutes.
I
I
Ord
96-8 J. Should any identified sites or remains such as artifacts, shell, On-Going Hokuli'a will comply with requirement. ~
bone, or chazcoal deposits, human burials, rock or coral
alignments, pavings or wall be encountered, work in the i
immediate azea shall cease and the Planning Director shall be
immediately notified. Subsequent work shall proceed upon an
archaeological clearance from the Planning Director when it
finds that sufficient mitigative measures have been taken.
Ord. 96-8 K. A solid waste management plan shall be prepared meeting with Complied Solid Waste Management Plan approved 10/31 /00.
the approval of the Department of Public Works prior to ~
submitting plans for subdivision review. The Plan shall ~
include, but not be limited to, the management of construction
solid waste as well as operating and domestic solid waste
generated by the subject property. Approved recommendations In Process Hokuli'a will comply with this requirement.
and mitigation measures shall be implemented at a time and in
a manner with the approval of the Department of Public Works.
Page No. 5
Hokuli'a
Change of Zone Ordinance No. 96-8 -January 15,1996
2004 Annual Report
January 14, 2004
Page 6 of 14
Condition Condition Status
No. Compliance
Ord. 9G-8 L. Roadway Improvements and access(es) to the subject property, Complied Haleki'i Street intersection improvements at
including all plans and construction, shall meet with the Mamalahoa Highway were completed and in
approval of the Department of Public Works. Prior to the operation as of January 11, 1999.
issuance of Final Subdivision Approval for any portion of the i
subjectproperty, the applicant shall: ~
(1) construct the channelization and signalization of the
Mamalahoa Highway-Haleki'i Street intersection.
(2) determine the final right-of--way alignment of the entire Complied DPW approved Bypass alignment on January 30,
Mamalahoa Highway Bypass between the approximately 1997. Metes and Bounds of MHB Right-of-Way
vicinity of Keauhou and Captain Cook, including its and Evidence of Control were submitted to the ~
intersection areas and its acquired ownership or control. The County on September 10, 1999.
applicant shall provide the Planning Director with a metes and i
bounds description of each road right-of--way segment involved i
and evidence of its ownership or control as deemed necessary I
~ by the Planning Director. In lieu of the applicant obtaining or
I
I acquiring ownership or control of any segment of the
~ Mamalahoa Highway Bypass, the requirement shall be deemed
fulfilled u on the coun
p ty's formal initiation of condemnation
action for such segments and an agreement has been entered
into between the applicant and the county providing for the
applicant's reimbursement to the county for the acquisition of
the lands condemned.
(3) construct the Mamalahoa Highway Bypass in its entirety Complied These improvements were bonded as part of Yhase
between the approximate vicinity of Keauhou and Captain I in accordance with Section 23-81 of the i
Cook, consisting of two lanes with sufficient right-of--way fora Subdivision Code and Paragraph 13 of
total of four lanes, provided further that the section of the Development Agreement No. 1
Mamalahoa Highway Bypass between Keauhou and Haleki'i
Street shall be completed and available for public use prior to
the occupancy of any dwelling unit within the entire ro'ect
Page No. 6
Hokuliva
Change of done Ordinance No. 96-8 -January 15,1996
2004 Annual Report
January 14, 2004
Page 7 of 14
Condition Condition
Status Compliance
No.
area; ~
(4) construct the extension of Haleki'i Street through the Complied These improvements were bonded as part of Phase
subject property as generally reflected in Exhibit "B", which 1 in accordance with Section 23-81 of the
phasing of improvements shall be approved by the Department Subdivision Code and Paragraph 13 of
of Public Works. If, before the completion and opening of the Development Agreement No. 1.
entire Mamalahoa Highway Bypass, a portion of said bypass is
completed and opened, and said portion provides a connection
to Haleki'i Street, a barricade or breakaway gate, meeting with
the requirements of the Department of Public Works, shall be
installed by the applicant as part of the required Haleki'i Street
improvements. The purpose of this condition is to prevent the i
use of Haleki'i Street as a vehicular thoroughfaze between the ~
existing Mamalahoa Highway and a portion of the Mamalahoa
Highway Bypass until the entire proposed Mamalahoa
Highway Bypass between the approximate vicinity of Keauhou
and Captain Cook has been completed and opened for general
~ public use; and '
I i
(5) provide roadway stub-outs, generally shown in Exhibit Complied These roadway stubouts have been incorporated
"B", to provide future connections between the subject on the Final Plat Map for Subdivision No. 7168.
property, and the adjacent properties to the north and south; ~
These improvements were bonded as part of Phase
provided that such stub-outs shall be constructed in accordance 1 in accordance with Section 23-81 of the
with the construction phasing as approved by the Department Subdivision Code and Paragraph 13 of
of Public Works. Development Agreement No. 1.
The applicant shall construct the Mamalahoa Highway Bypass
to standards set forth by the Department of Public Works for
Ali'i Highway with such modifications as maybe deemed
necessary by the Department of Public Works. The applicant
~ shall provide a landscape buffer along highway sections within
L five hundred feet of existing dwellings, as re tared b the chief
Page No. 7
Hokuli'a
Change of Zone Ordinance No. 96-8 -January 15, 1996
2004 Annual Report
January 14, 2004
Page 8 of 14
Condition Condition Status Compliance
No.
engineer, to reduce the impacts of noise and light on the ~
residents therein and to generally beautify the highway
appearance in such locations; provided that the applicant shall ~
enter into a reimbursement agreement with the County which
sets forth the terms and conditions of reimbursement for costs
incurred for the construction, land acquisition and design of the
Mamalahoa Highway Bypass out of funds paid to the state
and/or county by other developers or landowners whom the
county may determine as benefiting from the Mamalahoa
Highway Bypass and which funds are available to the county j
for such purpose; and provided further, that the total amount of
reimbursement due to the applicant shall not exceed the total ~
cost of land acquisition, design and construction of the ~
Mamalahoa Highway Bypass incurred by the applicant, less the
pro rata portion attributed to the subject property.
Ord. 96-8 M All roadway improvements stated in Condition L of this Ht Process Hokuli'a will comply with this requirement.
ordinance shall be dedicated to the County of Hawaii.
Ord. 96-8 N. To ensure that the Goals and Policies of the Recreational Complied Dedication was submitted to the County as part of
element of the General Plan are implemented, the applicant Phase 1 subdivision approval.
shall provide two acres of land abutting the north side of Kona
Scenic Park for public purposes prior to Final Subdivision
Approval of the subject property.
~ Ord. 96-8 O. In lieu of actual construction of infrastructural improvements as In Process Improvements were bonded as part of Phase 1 and
required under Conditions D, F, H, K and L, the applicant may 2 Final Subdivision Approvals.
enter into an agreement with the Planning Director to assure the
county that the infrastructrr_ral improvements will be
Page No. 8
Hokuli'a
Change of Zone Ordinance No. 96-8 -January 15,1996
2004 Annual Report
January 14, 2004
Page 9 of 14
Condition Condition Status Compliance
No.
constructed together with the appropriate bond, surety or other
security deemed acceptable to the Planning Director and the
Corporation Counsel Upon execution of such agreement
and/or filing of the security with the CounTy, Final Subdivision
Approval for the subject property or portions thereof shall be
granted prior [o the actual construction of required
infrastructural improvements.
~ Ord. 46-8 P. It shall be demonstrated to the satisfaction of the Plamting In Process Hokuli'a will comply with this condition.
Director that agricultural activity is being conducted on the
subdivided lots within three yeazs from the date of Final
Subdivision Approval. For the purposes of this condition,
"agriculture" shall be defined as the cultivation of crops,
including but not limited to flowers, vegetable, foliage, and
fruits that are propagated for economic or personal use. An
agricultural activity will be considered satisfactory:
(1) if such activity is implementing a conservation program for Extension of time until September 18, 2005 to
the affected property(ies), as approved by the applicable soil comply with Condition P(I) or (2) granted by
and water conservation district directors and filed with the Soil County August 26, 2002.
Conservation Service;
(2) if it provides a source of income to the person(s) who
reside on the property; or
(3) if the property is dedicated for agricultural uses in
accordance with applicable Tax Department procedures and
I that such agriculture dedication shall be made a deed covenant
and duly recorded with the State Bureau of Conveyances and a
copy of the recorded deeds shall be filed with the Planning
I Department within one yeaz from the date of Final Subdivision
approval. Each approved ]ot must comply with at least one of
Page No. 9
Hokuli'a
Change of Zone Ordinance No. 96-8 -January 15,1996
2004 Annual Report
January 14, 2004
Page 10 of 14
Condlition Condition Status
No. Compliance
the above requirements to satisfy the conditions of approval of
this ordinance.
L
~ Ord. 9(-8 Q. Restrictive covenants in the deeds of all the proposed lots shall Complied Covenant recorded with the Bureau of
prohibit the construction of a second dwelling runt on each lot; Conveyances prohibiting construction of second
provided that this shall not preclude the construction of a guest dwellings in Phase 1 and 2 Hokuli'a will comply
house as defined under Chapter 25 of the Hawaii County Code. with this requirement for fuhire phases of the
A copy of the proposed covenant(s) to be recorded with the project.
Bureau of Conveyances shall be submitted to the Planning
Department for review and approval prior to final subdivision
approval. A copy of the approved covenant shall be recited in
an inshument executed by the applicant and the county and
recorded with the Bureau of Conveyances likewise prior to
final subdivision approval.
Ord. 9G-8 R. The applicant shall make its fair share contribution to mitigate Complied Fair share requirements were complied with for
the potential regional impacts of the subject property with Phase 1 and 2 of the project. Hokuli'a will comply
respect to parks and recreation, fire, police, solid waste disposal with this requirement for future phases of the
facilities and roads. The amount of the fair shaze contribution project.
shall be the sum which is the product of multiplying the
number of lots proposed to be subdivided by the amounts
allocated hereinbelow for each such lot, and shall become due
~ and payable prior to final subdivision approval for any portion
~ of the subject property or its increments. If the subject property
is subdivided in two or more increments, the amount of the fair
share contribution due and payable prior to final subdivision
approval of each increment shall be a sum calculated in the
same manner according to the number additional proposed lots
in each such increment. The fair shaze contribution for each
i
Page No. 10
Hokuli'a
Change of ?one Ordinance No. 96-8 -January 15,1996
2004 Annual Report
January 14, 2004
Page 11 of 14
Condition Condition Status
No Compliance
]ot, except for lots larger than ten acres in size or which are
committed exclusively for golf course and park purposes, shall
be based on the maximum allowable density of building sites as
determined by the zoning of such lot. The fair share
~ contribution in a for of cash, land, facilities, or any combination
thereof acceptable to the director in consultation with the
affected agencies shall have a maximum combined value of
$7,239.16 per lot. Based upon the applicant's representation of
intent to subdivide and develop up to 4001ots, the indicated
total fair share contribution is $2,895,664.00. however, the total
amount shall be increased or reduced in proportion with the
actual number of subdivided lots according to the calculation ~
and payment provisions set forth in this Condifion O. The fair
share contribution shall be allocated as follows:
(I) $3,490.85 per lot, for an indicated total of $1,396,340.00 to Complied Phase 1 and 2.
the County to support park and recreational improvements and
facilities,
(2) $168.40 per each lot, for an indicated total of $67,360.00 Complied Phase 1 and 2.
to the County to support police facilities;
(3) $332.61 per lot, for an indicated total of $133,044.00 to the Complied Phase 1 and 2.
County to support fire facilities;
(4) $145.62 per lot, for an indicated total of $58, 248.00 to the Complied Phase 1 and 2.
County to support solid waste facilities;
(5) $3,101.68 per lot, for an indicated total of $1,240,672.00 to Complied Phase 1 and 2.
the County to support road and traffic improvements.
~ The fair share contribution described above shall be adjusted
I
annually beginning three years after the effective date of this ~
~ ordinance, based on the percentage change in the Honolulu
_ Consumer Price Index (HCPI . In lieu of a 'n the fair share
Page No. 11
Hokuli'a
Change of Zone Ordinance No. 96-8 -January 15,1996
2004 Annual Report
January 14, 2004
Page 1?, of 14
Coudition Condition Status Compliance
No.
~ - contribution, the applicant may construct
i improvements/facilities related to parks and recreation, fire,
police, solid waste disposal facilities, and roads within the
region impacted by the proposed development, subject to the
approval of the Planning Director. The cost of constructing the
improvements required in Conditions H, K and L shall be
credited against the sum specified in Condition R(1) for parks
and recreation, Condition R(4) for solid waste facilifies, and in
Condition R(5), for road and traffic improvements. For
purposes of administering Condition R, the value of land
contributed or the cost of any improvements required or made
in lieu of the fair share contribution shall be such amount as
approved by the Planning Director, upon consultation with the
appropriate agencies.
i Ord. 96-8 S. In the event that the State Department of Education adopts an Complied Per its letter of January 20, 1999, Planning
i educational facilities impact fee program, the applicant shall Department has determined that the DOE has not
participate in the requirements of the program. adopted an educational facilities impact fec.
Ord. 96-8 T Comply with all applicable laws, roles, regulations and On-Going Hokuli'a will comply with al] applicable laws,
requirements, including those of the Department of Health, Fire rules and requirements.
and Department of Water Supply.
O~ rd. 9EI-8 U. Should the Council adopt a Unified Impact Fee Ordinance On-Going Hokuli'a acknowledges that required exactions
~ setting forth criteria for the imposition of exactions of the may be credited towards the requirements of an i
assessment of impact fees, conditions including herein shall be 'Unified Impact Fee Ordinance should it be
credited towards the requirements of the Unified Impact Fees adopted.
Ordinance.
i
Page No. 12
Hokuli'a
Change of Zone Ordinance No. 96-8 -January 15,1996
2004 Annual Report
January 14, 2004
Page 13 of 14
Condition Condition Status
Compliance
No.
Ord. 96-8 V. An annual progress report shall be submitted to the Planning On-Going Hokuli'a will provide annual reports to the County
Director prior to each anniversary date of the approval of this in accordance with this requirement.
change of zone. The report shall address in detail the status of
the development and the compliance with the conditions of
approval. This condition shall remain in effect until all of the
conditions of approval have been complied with and the
Planning Director acknowledges that further reports aze not
required.
Ord. 96-8 W. An extension of time for the performance of conditions within On-Going Hokuli'a acknowledges that a time extension for
the ordinance, with the exception of Condition C, maybe compliance with the conditions of approval may be
anted b the Plannin Director a on the followin
~ y g P g granted by the Director.
circumstances;
(1) the non-performance is the result of conditions that could ~
not have been foreseen or are beyond the control of the
applicant, successors or assigns, and that are not the result of
their fault or negligence;
(2) granting of the time extension would not be contrary to the ~
General Plan or Zoning Code;
(3) granting of the time extension would not be contrary to the
original reasons for the granting of the change of zone;
(4) the time extension granted shall be for a period not to
exceed the period originally granted for performance (i.e., a
condition to be performed within one year maybe extended for
up to one additional year); and
(5) should the Applicant require an additional extension of
time, the Planning Director shall submit the Applicant's request
to the County Council for appropriate action.
Further, should any of the conditions not be met or
Page No. 13
Hokuli'a
Change of Zone Ordinance No. 96-8 -January 15,1996
2004 Aa~nual Report
January 14, 2004
Page 14 of 14
Condition Condition Status
No. Compliance
substantially complied with in a timely fashion, the Director
shall initiate rezoning of the area to its original or more
appropriate designation.
Page No. 14
Hokuli'a
Special Management Area Use Permit No. 356 (September 14, 1995)
To Allow Development of the Agricultural Subdivision and Related Improvements
2004 Annual Report
January 14, 2004 ~ ' ~ j
Page 1 of 4
Permit No. Condition Status Comments
SMA 356 1. The applicant, successors or assigns shall be responsible for On-Going Hokuli~a agrees that it will comply with all stated
complying with all of the stated conditions of approval. conditions of approval.
SMA 356 2. The applicant shall indemnify and hold the County harmless and Complied Indemnification has been incorporated into project
against any loss, liability, claim or demand for the property damage, CC&R's.
personal injury or death azising out of any act or omission of the
applicant, its successors or assigns, officers, employees arising under
this permit.
SMA 356 3. The effective date of this Special Management Area Use Permit shall Complied Effective date of Ord. 96-7 is January 15, 1996. II
be the effective date of the Change of zone.
SMA 356 4 An Archaeological Mitigation and Interpretation Plan shall be Complied Letters dated 9/7/99 and 9/15/99 from SHPD
prepared and submitted for approval by the Planning Director, in approved the Data Recovery Plan and the i~
consultation with the Department of Land and Natural Resources- Preservation and Interpretive and Monitoring
Historic Preservation Division and Hawaiian community Plans, respectively.
organizations, prior to submitting plans For plan approval review.
The plan shall consist of three subplans:
(A) An archaeological data recovery plan for the sites to undergo Complied Hokuli`a will comply with the requirements of the
data recovery, approved mitigation plan prior to or in conjunction
(B) A detailed interim protection/preservation plan for the sites to Complied with any land alternation.
under preservation, and
(C) An interpretation plan which shall include buffer zones, signage, In Process
and long-range preservation concerns which may be submitted at a
later date. Approved mitigation measures shall be implemented prior
to or in conjunction with any land alteration activity within the
Page No. 1
Hokuli a
Special Management Area Use Permit No. 356 (September 14, 1995)
To Allow Development of the Agricultural Subdivision and Related Improvements
2004 Annual Report
January 14, 2004
Page 2 of 4
Permit No. Condition Status Comments
~ project area.
The Plan shall also include a detailed map of known lava tube/cave In Process
systems located within the project site and mitigative measures to I
ensure that the proposed development does not impact these cave
systems.
SMA 356 6. A Natural Resource Management Plan shall be submitted for review Complied NRM was approved by the County on July 9, 1999.
and approval by the Planning Director, in consultation with the
Department of Land and Natural Resources, prior to securing Final
Subdivision Approval.
SMA 356 7. A detailed drainage study shall be prepared by the Applicant for Complied Flood and Drainage Study for Phase 1 and 2 areas
review and approval by the Deparhnent of Public Works prior to were submitted August 4, 1999.
submittal of plans for Subdivision Approval review of the agricultural
subdivision. A drainage system shall be installed meeting with the In Process Hokulia will comply with this requirement.
approval of the Department of Public Works, prior to securing Final
Subdivision Approval.
SMA 356 8. Use of pesticides and herbicides in conjunction with all phases of On-Going Hokuli' a agrees to comply with this condition.
operation shall conform with the applicable regulations of the
appropriate government agencies.
SMA 356 11. All electrical and communication utilities and systems within the In Process Hokuli'a will comply with this requirement.
Project site shall be placed underground ,with the exception of the
main 69 KV transmission line from the Mamalahoa Highway to the Utility improvements for Phase 1 and 2 were
proposed electrical substation site. bonded and Phase I is currently under construction.
Page No. 2
Hokuli a
Special Management Area Use Permit No. 356 (September 14, 1995)
To Allow Development of the Agricultural Subdivision and Related Improvements
2004 Annual Report
January 14, 2004
Page 3 of 4
Permit No. Condition Status Comments
SMA 356 12. A wastewater disposal system shall be constructed in a manner In Process Hokuli'a will comply with this requirement.
meeting with the approval of the State Department of Health and/or
the Department of Public Works, whichever is applicable. Wastewater disposal system was bonded as part of
subdivision improvements for Phase 1 and 2 of
Hokuli' a and is currently under construction.
SMA 356 13. An annual progress report shall be submitted to the Planning Director On-Going Hokuli'a will provide annual reports to the County
prior to each anniversary date of the approval of this permit. The in accordance with this requirement.
report shall include, but not be limited to, the status of the
development and to what extent the conditions of approval are being
complied with. This condition shall remain in effect unril all of the
conditions of approval have been complied with and the Planning
Director acknowledges that further reports aze not required.
SMA 356 14. An extension of time for the performance of conditions within this On-Going Hokuli'a acknowledges that a time extension for
permit may be granted by the Planning Director upon the following compliance with the conditions of approval may be
circumstances: granted by the Director
(A) the non performance is the result of conditions that could not
have been foreseen or are beyond the control of the applicant,
successors or assigns, and that are not the result of their fault or
negligence;
(B) granting of the time extension would not be contrazy to the
General Plan or Zoning Code;
(C) granting of the time extension would not be contrary to the
original reasons for the granting of this permit;
(D) the time extension granted shall not be for period not to exceed
the period originally granted for performance (i.e., a condition to be
Page No. 3
Hokuli a
SpeciaE Management Area Use Permit No. 356 (September 14, 1995)
To Allow Development of the Agricultural Subdivision and Related Improvements
2004 Annual Report
January 14, 2004
Page 4 of 4
Permit No. Condition Status Comments
performed within one year may be extended for up to one additional
yeas}.
Should any of the conditions not be met or substantially complied
with in a timely fashion, the Director shall initiate procedures to
revoke this permit.
Page No. 4