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HomeMy WebLinkAboutCOM 0151.004 2008-2010 Lincoln S.T. Ashida ~Ide, Corporation Counsel William P. Kenoi Mayor Katherine A. Garson Assistant Corporation o. x.~ Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 . Hilo, Hawaii 96720-4262 . (808) 961-8251 Fax (808) 961-8622 E-mail: corpcounsel@co.hawaii.hi.us March 17, 2009 :v Honorable Dominic Yagong and Members of the L3 Hawaii County Council Committee on Finance Z,i~ rv Ben Franklin Building s 333 Kilauea Ave., 2"d Floor Hilo, Hawai'i 96720 = r Sent via email - no paper copy to follow Dear Chairman Yagong and Finance Committee Members: RE: Hamakua Lands Our Entry No.: WRK 09-0580 Thank you for contacting our legal staff concerning issues you raised related to the proposed operating budget for the County of Hawaii for fiscal year 2009-2010. You asked our office whether there was any prohibition against the use of the anticipated sale of the Hamakua lands as projected revenue. Based on the following review and analysis, we conclude there is no prohibition. There is no legal or financial prohibition against the use of the anticipated sale of the lands as projected revenue in the County's operating budget Any meaningful discussion of the County's "Hamakua lands" necessitates a review of its original conveyance to the County. The "Hamakua lands" consist of approximately 50 parcels and portions of parcels of land conveyed by Quitclaim Deed to the County recorded on May 9, 1995 as Document No. 95-061558, and Quitclaim Deed recorded on September 12, 1995 as Document No. 2259628, in lieu of foreclosure against Hamakua Sugar Company Inc. (Exhibit A). In the normal course, these parcels would have been sold and the proceeds captured as revenue to the County. Instead however, the County took possession and ownership of these parcels. In 2002, the Hawaii County Council authorized the Director of Finance, through Resolutions 161-02 and 209-02, to dispose of the "Hamakua lands" by sale or exchange. Since that time, no Council (including the present Council) has Comm. N S + Hawai'i County is an Equal Opportunity Employer and Provider Ref. To: _ Ref. Date 1W 3___ 0 20H Honorable Dominic Yagong and Members of the Hawaii County Council Committee on Finance March 17, 2009 Page 2 countermanded that authorization, and the record presently reflects that the Council has duly authorized and presently supports such a sale or exchange.' This action by the Council in 2002 that remains in place to date is determinative of the issue you raise. Simply put, the "Hamakua lands" were no longer simply assets of the County but unrealized revenue. The intent of the Council was clearly stated in Resolution 209-02, wherein it found "that the public interest demands that the sale of the County's Hamakua Sugar Company's land obtain the highest value and best return potential in view of the circumstances surrounding the properties, which may best be achieved through negotiated sale.,2 We have been informed and are of the belief that an appraisal of the parcels anticipated to be sold has been completed. A review of the Hawaii County Charter, the County Code, Hawaii Revised Statutes, and other municipal law sources support the conclusion there is no prohibition against the use of the anticipated sale of the lands as projected revenue in the County's operating budget for fiscal year 2009-2010 Article X, Hawaii County Charter (2000) (hereinafter "Charter") is relevant in our analysis. Section 10-3 includes among the required elements of an operating budget a recitation of estimated revenues. The sources of these estimated or projected revenues are not limited by the Charter. Historically these projected revenues have included the two major sources of funding for our County, namely real property tax revenues and the anticipated funding from the transient accommodations tax. Since we accept your inquiry as a question whether the proposed sale of lands and the application of the resulting proceeds to the proposed operating budget for our County violated any law, our legal staff performed rigorous legal research on that specific question. A search of the aforementioned Charter, Hawaii County Code, Hawaii Revised Statutes, as amended, Hawaii case law, Hawaii State Attorney General Opinions, American Juris Prudence, Corpus Juris Secundum and McQuillin's on Municipal Corporations did not yield any prohibition against the use of anticipated land sales as projected revenue. In fact to the contrary, it was found that several municipalities like our County of Hawaii have included anticipated land sales as part of their projected or estimated revenue.3 ' Chapter 2, Article 19, Section 2-111, Hawaii County Code 1983 (2005 Edition) provides in pertinent part that the council may "be resolution approved by a majority of its members, direct the finance director or director of public works... to dispose of real property in fee simple by lease, license, or permit..." 2 Resolution 209-02, paragraph 5. 3 County of Long Beach, California, FY 2006; City of Colorado Springs, Colorado FY 2008. Honorable Dominic Yagong and Members of the Hawaii County Council Committee on Finance March 17, 2009 Page 3 Conclusion Based on the foregoing reasons and authorities, it is our considered opinion that there is no legal prohibition against the use of anticipated land sales as projected or estimated revenue for budgetary purposes. This conclusion is supported by our review of the Charter, County Code, State law, and other sources of municipal law. In fact, there is precedence found in other municipalities that have similarly utilized anticipated land sales for the purpose of calculating projected municipal revenue for budget purposes. Very truly yours, Ashida, Lincoln Mar 17 2009 4:03 PM LINCOLN S.T. ASHIDA Corporation Counsel LSA/mr Attach. LF: WRK 09-0580/LSAmr 03-17-09 TIE ORIGINAL OF TIE DOCUMFld RECO~OFD AS Follow; STATE OF HAWAII ,~u~,ER ABUREAU ~/OF CONVEYANCES DA AY.......T _ • DOtUMENI No.____ /2UfEZg LAND COURT SYSTEM REGULAR SYSTEM AFTER RECORDATION, RETURN BY MAIL PICK UP ( ) To: COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNS9 HILO LAGOON CENTRE 101 AUPUNI STREET, SUITE 325 HILO, HI 96720 COMMISSIONER'S QUITCLAIM DEED Grantor: PHIL GRAY, as Commissioner Grantee: COUNTY OF HAWAII Property: See Exhibit A, attached hereto THIS COMMISSIONER'S QUITCLAIM DEED made by PHIL GRAY, as Commissioner, duly appointed as hereinafter set forth, hereinafter called "Grantor," in favor of the COUNTY OF HAWAII, whose principal place of business and post office address is 25 Aupuni Street, Hilo, Hawaii 96720 , hereinafter called "Grantee." WITNESSETH: WHEREAS, Phil Gray was duly appointed as Commissioner pursuant to that certain Order Appointing Commissioner, filed on May 19, 1994, in the United States 0059938.01 Commissiom'S Quitclaim Exhibit A Deed/County of Hawaii a a~DA District Court for the District of Hawaii (hereinafter called the "Court"), in those certain proceedings entitled Western Farm Credit Bank v. Hamakua Sugar Company. Inc.. et al.. designated as Civil No. 93-00318ACK (the "foreclosure proceedings"), in the files of the Court; and WHEREAS, pursuant to the First Amended Findings of Fact, Conclusions of Law, Order Granting Plaintiff Western Farm Credit Bank's Motion for Partial Summary Judgment and Decree of Foreclosure filed January 3, 1994 (hereinafter called the "Decree of Foreclosure"), which Decree of Foreclosure was filed June 30, 1994, in the foreclosure proceedings, the Property., and other property, was foreclosed; and - WHEREAS, pursuant to the Order Granting Trustee's Motion to Approve Settlement among Western Farm Credit Bank, County of Hawaii and Trustee of Hamakua Sugar Company, Inc., entered in In re Hamakua Sugar Company. Inc.. Debtor. Case No. 92-00865 (Chapter 11), United States Bankruptcy Court for the District of Hawaii (the "Bankruptcy proceedings"), on August 3, 1994 (the "Bankruptcy Settlement Order"), and pursuant to the August 3, 1994 Order Granting Western Farm Credit Bank's Motion to Approve Settlement among Western Farm Credit Bank, the County of Hawaii and Hamakua Sugar Company, Inc., through its Trustee, to Enter Judgment by Stipulation pursuant to Settlement, and to Issue Supplementary Instructions to the Commissioner, filed July 14, 1994 in the foreclosure proceedings (the "Foreclosure Settlement Order"), both'of which Orders approved and attached the Settlement Agreement and Mutual Releases (the "Settlement Agreement"), the Grantee has a right to obtain the Property; and WHEREAS,by that certain Order Directing Commissioner to Execute and Deliver Deed to County of Hawaii filed January 17, 1995, in the aforesaid foreclosure proceedings (hereinafter called the "Order Authorizing Deed"), and in and by the terms of the Order Authorizing Deed, Grantor was directed to sell and convey the Property to Grantee; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which consideration is hereby acknowledged, Grantor, as Commissioner as aforesaid, does hereby grant, bargain, sell, convey, remise, release and forever quitclaim unto Grantee, its successors and assigns, as tenant in severalty, absolutely and in fee simple, forever, all of the property described in Exhibit "A" attached hereto; subject, however, to the encumbrances, conditions, restrictions, agreements, easements, obligations, exceptions, reservations, and other matters set forth in Exhibit "A" and in the Decree of Foreclosure, the Bankruptcy Settlement Order, the Foreclosure Settlement Order, the Settlement Agreement, the Order Authorizing Deed, and the Order Approving Settlement Agreement entered in the Bankruptcy proceedings on July 11, 1993, as amended and refrled on August 29, 1994. 0059929.01 Commiaiow i Quitclaim Page 2 of 4 Deed/Coamy of Hawaii i AND the reversions, remainders, rents, issue and profits thereof, and all of the estate, right, title and interest of the Grantor, both at law and in equity, therein and thereto. TO HAVE AND TO HOLD the same, together with all buildings, improvements, tenements, hereditaments, rights, easements, privileges and appurtenances, including all water courses and water rights, if any, thereon and thereunto belonging or appertaining or held and enjoyed therewith, unto the Grantee, according to the tenancy set forth above, forever. This conveyance is "AS IS, WHERE IS," and Grantor has not made and does not make any warranties or representations of any kind, expressed or implied, as to Grantor's title in or to the Property or any other property or rights, including water rights, quitclaimed hereby, as to the conditions, merchantability or state of repair of the Property or any other property or rights, including water rights, quitclaimed hereby, or fitness of the Property or any other property or rights, including water rights, quitclaimed hereby, for any particular purpose. This Commissioner's Quitclaim Deed is made in full satisfaction of the terms, conditions and provisions of the Bankruptcy Settlement Order, the Foreclosure Settlement Order, the Settlement Agreement and the Order Authorizing Deed, with respect to the conveyance of the County Foreclosure Parcels (as defined in the Settlement Agreement) to the County of Hawaii, and, pursuant to the Decree of Foreclosure and the Order Authorizing Deed, this Commissioner's Quitclaim Deed shall forever bar and foreclose the Defendants in Civil No. 93-00318ACK, and all persons claiming any interest in the Property by, through, or under such Defendants, from all right, title and interest in the Property, both at law and in equity, except as provided in the Decree of Foreclosure and the Order Authorizing Deed. IN WITNESS WHEREOF, Grantor has exe uted these presents on this _ day of AS ~L, 25 .1995. PHIL Commissioner aforesaid Grantor 0059928.01 Commissioner's Quitclaim Page 3 of 4 Dood/County of Hawaii i STATE OF HAWAII ) SS. CITY AND COUNTY OF HONOLULU ) On this day of ,g&eiA 1995, before me personally appeared PHIL GRAY, as Commissioner, to me personally known, who, being by me duly sworn or affirmed, did say that such person(s) executed the foregoing instrument as the free act and deed of such person(s), and if applicable in the capacity shown, having been duly authorized to execute such instrument in such capacity. cav . ,.l Notary Public, State of Hawaii My commission expires: . >7 . 0059929.01 Commissioner's Quitclaim Page 4 of 4 oae&Coimty of Hawaii n r EXHIBIT "A" All of those certain parcels of land situate in the Island and County of Hawaii, State of Hawaii, and designated upon the Tax Maps of the State of Hawaii, as follows: LOCATION: Honomaino, Kaihuiki, Puuohai and Maulua-iki TAX KEY TITLE AREA 3-4-4-6 Portion Land Patent Grant No. 3641, 10.208 acres Apana 2 3-4-4-16 Portion Land Patent Grant No. 3650, 1.050 acres Apana 1 LOCATION: Papaaloa and Kaiwilahilahi TAX KEY TI LE AREA 3-5-3-30 Portion Royal Patent Grant No. 904 0.06 acre 3-5-3-64 Portion Royal Patent Grant No. 2729 0.008 acre LOCATION: Papaaloa, Kihalani and Manowaiopae TAX KEY TITL AREA 3-5-4-1 Portion Royal Patent Grant No. 908 0.08 acre LOCATIO : Waipunalei TAX KEY TITLE AREA 3-6-5-92 Portion Land Patent Grant No. 3688 0.765 acre LOCATION: Ollkala and Humuula TAX KEY TITLE ARF 3-9-1-33 Portion Land Patent Grant No. 3705 0.426 acre 3-9-1-35 Portion Royal Patent Grant No. 2467 0.08 acre LOCATION: Kaala, Kealakaha and Keehia TAX KEY TITLE, AREA 4-1-3-35 Portion Royal Patent Grant No. 2049 0.17 acre 14-1-3-39 Portion Royal Patent Grant No. 2049 0.08 acre J:\Ham\Cmanr2 940629 1 V, i LOCATION: Kaao TAX KEY TITLE AREA 4-2-2-19 Portion Royal Patent Grant No. 2494 0.065 acre 4-2-2-20 Portion Royal Patent Grant No. 2494 0.104 acre LOCATION: Kainehe and Koholalele TAX KEY TITLE AREA 4-2-3-8 Portion Mahele Award No. 26-8 0.02 acre LOCATION: Kaohe lst, Aamanu and Paauilo TAX KEY TITL AREA 4-3-1-13 Portion Royal Patent Grant No. 633 3.572 acres Together with a perpetual non-exclusive easement appurtenant to Tax Key 4-3-1-13 for access apd utility purposes over, under and across Tax Key 4-3-1-2. LOCATION: Hauola and Opihilala TAX KEY TITLE AREA •4-3-3-9 A 45-foot wide strip of land at 2.71 acres Hauola, Hamakua, Hawaii described in Deed of Territory of Hawaii to Hamakua Mill Company dated May 12, 1910, recorded in Liber 327 at Page 441 LOCATION: Manienie GROSS UNDIVIDED TAX KEY TITLE AREA INTEREST 4-3-4-15 Portion Royal Patent 0.06 acre UNKNOWN Grant No. 1071 and Portion Royal Patent Grant No. 2122 LOCATION: Manienie, Kamoauau and Kamaui TAX KEY TITLE AREA 4-3-4-17 Portion Royal Patent Grant No. 2122 0.852 acre J:\wm%Cmsn2 940629 2 G( U LOCATION: Kalua, Heneheneula, Kaumoali and Kaunamano TAX KEY TITLE ARAB 4-4-1-19 Portion Land Patent Grant No. 8072 0.09 acre LOCATION: Paauhau TAX KEY TITLE AREA 4-4-5-3 Portion Land Commission Award No. 0.248 acre 8452, Apana 14 Together With: a. Perpetual non-exclusive easements for roadway purposes over and across portion of Grant 9439 to Joe Rebeiro Gonsalves (Lots 42 and 43 of the Kaao Homesteads) being Tax Key 4- 5-03-15 owned by Takeshi Hagiwara as conveyed by indenture dated August 25, 1959 and recorded in the Bureau of Conveyances of Hawaii in Liber 3769 at Page 68. b. Non exclusive easements for roadway purposes over and across portion of Grant 9430 to Eliza Freitas Mendes (Lot 40 of the Kaao Homesteads), being Tax Key 4-5-03-06 owned by Kenzuchi Hagiwara as conveyed by indenture dated December 10, 1959 and recorded in said Bureau in Liber 3769 at Page 54. c. Non exclusive easements for roadway purposes over and across portion of Grant 9430 to Eliza Freitas Mendes (Lot 41 of the Kaao Homesteads), being Tax Key 4-5-03-16 owned by Kenzuchi Hagiwara as conveyed by indenture dated December 10, 1959 and recorded in said Bureau in Liber 3769 at Page 61. d. Perpetual, non-exclusive right and easement for road and ditch purposes over and across portion of Grant 2464 to Kaoo, being Tax Key 4-4-04-05 owned by Wachi, Inc, as conveyed by indenture dated August 23, 1968 and recorded in said Bureau in Liber 6220 at Page 314. e. Permanent easement rights-of-way for flume purposes through and across portion of Grant 3937 to W. Webb being Tax Key 4-4-10-05 and for ditch purposes through and across portion of Grant 393 to E. R. Lindsay being Tax Key 4-4-1-15 and portion of Grant 3850 to J. J. de Nobriga being Tax Key 4-4-01-16 owned by J. J. Nobriga Junior, as conveyed by instrument dated March 7, 1944 and recorded in said Bureau in Liber 1818 at Page 447. J:\Ham\Crnsn2 940629 3 ~ G e LOCATION: Paauhau, Weha, Makakuolo, Keahua 2nd and Keauhau 1st TAX KEY TITLES 4=4-8-75 Portion Land Commission Award No. 1.53 acres 8404 LOCATION: Papalele, Waikaalulu, Kaapahu and Kaalua TA K TITLE AREA 4-4-9-17 Portion Royal Patent Grant No. 3722 0.127 acre LOCATION: Namoku, Pa.puaa & Nienie G O S UNDIVIDED TAX KEY TITLE AREA INTEREST 4-5-2-11 Portion Royal Patent 65.53 acres 13.11 acres Grant No. 1774 Land Commission Award' No. 7832 4-5-2-13 Land Commission Award 0.43 acre 0.42 acre No. 8141 LOCATION: Papanui, Haina, Namoku, Papuaa, Nienie and Paalaea TAX KEY TITLE AM 4-5-2-49 Portion Land Commission Award No. 154,616 sq.ft. 7833 and Portion Royal Patent or 3.55 acres Grant No. 946 LOCATION: Kaao TAX KEY TIM AREA 4-5-3-60 Portion Land Patent Grant No. 8846 0.485 acre LOCATION: Namoku and Nienie GROSS UNDIVIDED TAX KEY TITLE AIR INTEREST 4-5-10-9 Portion Royal Patent 10.47 acres 2.09 acres Grant No. 1774 LOCATION: Namoku TAX KEY TITLE AREA 4-5-18-8 Portion Royal Patent Grant No. 1155 0.011 acre J:\Ham\Cmanr2 940629 4 cO LOCATION: Kukuihaele and Lalakea TAX KEY TIT E AREA 4-8-4-12 Portion Kamehameha IV Deed to 0.082 acre W. C. Lunalilo, recorded in Liber 10, Page 55 LOCATION: Kukuihaele and Lalakea TAX KEY TITLE AREA 4-8-4-17 Portion Kamehameha IV Deed to 41,557 sq. ft. i W. C. Lunalilo, recorded in or 0.954 acre Liber 10, Page 55 I I I d:1Wm\Cmsnr2 940629 5~ P C^ C LOCATION: Kohalalele TAX KEY TITLE AREA 4-2-5-1 Portion Mahele Award No. 26-B 1040 acres LOCATION: Hauola, Opihilala, Paauilo and Manienie TAX KEY TITLE AREA 4-3-7-1 (por) Royal Patent Grant No. 2048 57.00 acres LOCATION: Hauola, Opihilala, Paauilo and Manienie TAX KEY TITLE RE 4-3-7-4 (por) Land Patent Grant No. 4967, Land 148.090 acres Patent Grant No. 5076 and Land Patent Grant No. 5477 I LOCATION: Paauilo A KEY TITLE AREA 4-3-9-2 Portion Land Patent Grant No. 51.10 acres 3946, Portion Land Patent Grant No. 3945, Portion Land Patent Grant No. 4340, Portion Land Patent Grant No. 4342 and Portion Land Patent Grant No. 4535 Together with a perpetual non-exclusive easement appurtenant to Tax Key 4-3-9-2 for access and utility purposes over, under and across Tax Key 4-3-8-1. LOCATION: Paauilo TAX KE TITLES 4-3-9-19 Land Patent Grant No. 3950, Land 110.9 acres Patent Grant No. 3951, Land Patent Grant No. 3952, Land Patent Grant No. 3962, Land Patent Grant No. 3963 and Land Patent Grant No. 4063 Together with a perpetual non-exclusive easement appurtenant to TAX KEY 4-3-9-19 for access and utility purposes over, under and across TAX KEY 4-3-1-3. 4-3-9-24 Royal Patent Grant No. 2441, Royal 169.50 ecres Patent Grant No. 2442, Land Patent Grant No. 3964, Land Patent Grant No. 4156, Land Patent Grant No. 4216 and Portion Land Patent Grant No. 4229 J:\Ham\Cmm2 940525 6 ' Together with a perpetual non-exclusive easement appurtenant to TAX KEY 4-3-9-24 for access and utility purposes over, under and across TAX KEY 4-3-1-3. LOCATION: Paauilo TAX KEY TITLE AREA 4-3-11-1 Lot 22, area 56.73 acres, Paauilo 56.73 acres Homesteads, 2nd Series, as shown on Map 1, of Land Court Application No. 697, being portion of the premises described in Transfer Certificate of Title No. 364,419. 4-3-11-2 Land Patent Grant No. 4597, Portion 306.275 acres Land Patent Grant No. 4934, Portion Land Patent Grant No. 4968, Portion Land Patent Grant No. 5175, Portion Land Patent Grant No. 5176, Portion Land Patent Grant No. 5177, L4nd Patent Grant No. 5245, Portion Land Patent Grant No. 5284 and Portion Land Patent Grant No. 5321 LOCATION: Paauilo TAX KEY TITLE AREA 4-3-12-6 Portion Land Patent Grant No. 5075 77.4 acres II J:\Ha \Cmsnr2 940525 7 LOCATION: Kapulena, Waialeale I, Waialeale II, Waikoloa I, Waikoloa II, Niupuka and Hanapai TAX KEY TITLE AREA 4-7-5-1 Portion Royal Patent Grant No. 670, 777.94 acres Portion Royal Patent Grant No. 791, Portion Royal Patent Grant No. 868, Royal Patent Grant No. 1564, Royal Patent Grant No. 1764, Royal Patent Grant No. 1765, Royal Patent Grant No. 1768, Royal Patent Grant No. 1770, Royal Patent Grant No. 1883, Portion Land Commission Award No. 9971, Apana 4, Portion Land Commission Award No. 9971, Apana 8 Together with a perpetual non-exclusive easement appurtenant to Tax Key 4-7-5-1 for access and utility purposes over, under and across Tax Keys 4-7-3-16, 4-7-3-18 and 4-7-4-2. LOCATION: Kapulena, Waialeale I, Waialeale II, Waikoloa I, Waikoloa II, Niupuka and Hanapai TAX KEY TITLE AREA li 4-7-5-2 Portion Royal Patent Grant No. 38.57 acres 1882, Portion Royal Patent Grant No. 1776 4-7-5-3 Portion Royal Patent Grant No. 1882 1.43 acres LOCATION: Malanahae, Kapoaula, Keahakea, Kaauhuhu TAX KEY TITLE AREA 4-7-6-1 Portion Royal Patent Grant No. 214.00 acres 2449, Portion Land Commission Award No. 9971, Apana 2 LOCATION: Malanahae, Kapoaula, Haukoi, Keahakea, Kapulena, Waialeale I, Waialeale II, Puanui, Waikoloa I and Waikoloa II TAX KEY TI TL AREA 4-7-6-5 Portion Royal Patent Grant No. 2123 81.40 acres Together with a perpetual non-exclusive easement appurtenant to TAX KEY 4-7-6-5 for access and utility purposes over, under and across TAX KEY 4-7-5-1. J:\Ham\Cmsnr2 94052 8 4-7-6-6 Portion Royal Patent Grant No. 167.70 acres 2124 and Portion Royal Patent Grant No. 670 Together with a perpetual non-exclusive easement appurtenant to TAX KEY 4-7-6-6 for access and utility purposes over, under and across TAX KEY 4-7-5-1. 4-7-6-7 Portion Royal Patent Grant No. 61.25 acres 2124 Together with a perpetual non-exclusive easement appurtenant to TAX KEY 4-7-6-7 for access and utility purposes over, under and across TAX KEY 4-7-5-1. 4-7-6-10 Portion Royal Patent Grant No. 791, 164.85 acres Portion Royal Patent Grant No. 1564, Portion Royal Patent Grant No. 1765, Royal Patent Grant No. 1763, Royal Patent Grant No. 1767, Portion Land Commission Award No. 9971, Apana 4 Together with a perpetual non-exclusive easement appurtenant to TAX KEY 4-7-6-10 for access and utility purposes over, under and across TAX KEY 4-7-5-1. LOCATION: Malanahae, Kapoaula, Keahakea, Kaauhuhu X KE TITLE AREA 4-7-6-18 Lot 16, Portion Royal Patent Grant 227.284 acres No. 2123, Portion Royal Patent Grant No. 2449, Portion Mahele Award No. 4-B, Portion Land Patent Grant No. 4003, Portion Land Commission Award No. 9971, Apana 2 4-7-6-20 Portion Land Patent Grant No. 4012 5.383 acres LOCATION: Keaa, Kalakalaula, Waikoekoe, Lalakea and Kukuihaele TAX KEY TITLE AREA 4-8-3-5 Portion Land Commission Award No. 660.60 acres 8559-B, Apana 2 and Portion Land Commission Award No. 10287 Together with a perpetual non-exclusive easement appurtenant to Tax Key 4-8-3-5 for access and utility purposes over, under and across Tax Key 4-8-2-5. J:\Ham\Cmsn2 94OUS 9 l AS TO ALL PARCELS: TOGETHER WITH: 1. All buildings, structures, and improvements thereon. 2. All appurtenant rights, including water rights and rights to utility, access, and water easements over portions of the "Foreclosure Property" (as defined in the nFirst Amended Findings of Fact, Conclusions of Law, Order Granting Plaintiff Western Farm Credit Bank's Motion for Partial Summary Judgment and Decree of Foreclosure Filed January 3, 1994," which was filed on June 30, 1994, in Western Farm Credit Bank v Hamakua Sugar Comoanv Inc., Civil No. 93-00318ACC, United States District Court for the District of Hawaii, and recorded in the Bureau of Conveyances of the State of Hawaii as Document No. 94-168864), (the "Decree of Foreclosure") for the benefit of, and appurtenant to, the property described above, all as provided in that certain unrecorded Order Approving Settlement Agreement, filed on June 11, 1993, as amended and refiled on August 29, 1994, in In re •Hamakua Sugar ComDanv Inc., Case No. 92-00865, United States Bankruptcy Court for the District of Hawaii, and the agreement attached to said order (which order and agreement are collectively hereinafter referred to as the "Bankruptcy Settlement Order"). 3. Any and all easements appurtenant thereto, whether or not referenced above, for any purpose whatsoever. SUBJECT, HOWEVER, TO the appurtenant rights, including water rights and rights to utility, access, and water easements over portions of said property for the benefit of, and appurtenant to, portions of said Foreclosure Property, and other property, as provided in the Decree of Foreclosure or the Bankruptcy Settlement Order. 0054693.01 10 r r ~,n n OFxYCE OF THE ASSISTANT REGISTRAR,. LAND COURT STATE OF HAWAII ,(Bureau of Conveyances) The original of this document Wad recorded as follows: pocs xv. yxrg6 >Q'.~ DAAEP 1 2 taut T=Lj- LAND COURT SYSTEM REGULAR SYSTEM Return by Mail (XX) Pickup ( ) To: office of the Corporation Counsel County of Hawaii ~,~1tiQ 101 Aupuni Street, Suite 325 G CIS~W' Hilo, Hawaii 96720 1766i Tax Map Key (3)4-3-011-001 COMMISSIONER'S OUITCLAIM DEED Grantor: PHIL GRAY, as Commissioner Grantee: COUNTY OF HAWAII Property: See Exhibit A, attached hereto THIS COMMISSIONER'S QUITCLAIM DEED made by PHIL GRAY, as commissioner, duly appointed as hereinafter set forth, hereinafter called "Grantor," in favor of the COUNTY OF HAWAII, whose principal place of business and post office address is 25 Aupuni Street, Hilo, Hawaii 96720, hereinafter called "Grantee." WITNESSETH: WHEREAS, Phil Gray was duly appointed as Commissioner pursuant to that certain Order Appointing commissioner, filed on May 19, 1994, in the United States District Court for the District of Hawaii (hereinafter called the "Court"), in those certain proceedings entitled Western Farm Credit Bank v Hamakua ~ l Sugar Company. Inc,. et al., designated as civil No. 93-00318ACK (the "foreclosure proceedings"), in the files of the Court; and WHEREAS, pursuant to the First Amended Findings of Fact, Conclusions of Law, Order Granting Plaintiff Western Farm Credit Bank's Motion for Partial Summary Judgment and Decree of Foreclosure filed January 3, 1994 (hereinafter called the "Decree of Foreclosure"), which Decree of Foreclosure was filed June 30, 1994, in the foreclosure proceedings, the Property, and other property, was foreclosed; and WHEREAS, pursuant to the Order Granting Trustee's Motion to Approve Settlement among Western Farm Credit Bank, County of Hawaii and Trustee of Hamakua Sugar Company, Inc., entered in in re Hamakua Sugar Company, Inc Debtor, Case No. 92-00865 (Chapter 11), United States Bankruptcy Court for the District of Hawaii (the "Bankruptcy proceedings"), on August 3, 1994 (the "Bankruptcy Settlement order"), and pursuant to the August 3, 1994 Order Granting Western Farm Credit Bank's Motion to Approve Settlement among Western Farm Credit Bank, the County of Hawaii and Hamakua Sugar Company, Inc., through its Trustee, to Enter Judgment by Stipulation pursuant to Settlement, and to Issue Supplementary Instructions to the commissioner, filed July 14, 1994 in the foreclosure proceedings (the "Foreclosure Settlement Order"), both of which orders approved and attached the Settlement Agreement and Mutual Releases (the "Settlement Agreement"), the Grantee has a right to obtain the Property; and WHEREAS, by that certain Order Directing commissioner to Execute and Deliver Deed to County of Hawaii filed January 17, 1995, in the aforesaid foreclosure proceedings (hereinafter called the "Order Authorizing Deed"), and attached hereto as Exhibit "B," and in and by the terms of the Order Authorizing Deed, Grantor was directed to sell and convey the Property to Grantee; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which consideration is hereby acknowledged, Grantor, as commissioner as aforesaid, does hereby grant, bargain, sell, convey, remise, release and forever quitclaim unto Grantee, its successors and assigns, as tenant in severalty, absolutely and in fee simple, forever, all of the property described in Exhibit "A" attached hereto; subject, however, to the encumbrances, conditions, restrictions, agreements, easements, obligations, exceptions, reservations, and other matters set forth in Exhibit "A" and in the Decree of Foreclosure, the Bankruptcy Settlement Order, the Foreclosure Settlement Order, the Settlement Agreement, the Order Authorizing Deed, and the Order Approving Settlement Agreement entered in the Bankruptcy proceedings on July 11, 1993, as amended and refiled on August 29, 1994. i -2- AND the reversions, remainders, rents, issue and profits thereof, and all of the estate, right, title and interest of the Grantor, both at law and in equity, therein and thereto. TO HAVE AND TO HOLD the same, together with all buildings, improvements, tenements, hereditaments, rights, easements, privileges and appurtenances, including all water courses and water rights, if any, thereon and thereunto belonging or appertaining or held and enjoyed therewith, unto the Grantee, according to the tenancy set forth above, forever. This conveyances is "AS IS, WHERE IS," and Grantor has not made and does not make any warranties or representations of any kind, expressed or implied, as to Grantor's title in or to the Property or any other property or rights, including water rights, quitclaimed hereby, as to the conditions, merchantability or state of repair of the Property or any other property or rights, including water rights, quitclaimed hereby, or fitness of the Property or any other property or rights, including water rights, quitclaimed hereby, for any particular purpose. This commissioner's quitclaim Deed is made in full satisfaction of the terms, conditions and provisions of the Bankruptcy Settlement Order, the Foreclosure Settlement Order, the settlement Agreement and the Order Authorizing Deed, with respect to the conveyance of the County Foreclosure Parcels (as defined in the Settlement Agreement) to the County of Hawaii, and, pursuant to the Decree of Foreclosure and the Order Authorizing Deed, this Commissioner's Quitclaim Deed shall forever bar and foreclose the Defendants in Civil No. 93-00318ACK, and all persons claiming any interest in the Property by, through, or under such Defendants, from all right, title and interest in the Property, both at law and in equity, except as provided in the Decree of Foreclosure and the Order Authorizing Deed. IN WITNESS WHEREOF, Grantor has ex ut these presents on this 9gth day of august , 99 PHIL GRAY a omm'ssioner Grantor -3- STATE OF HAWAII ) SS. CITY AND COUNTY OF HONOLULU ) On this 25th day of August 1995, before me personally appeared PHIL GRAY, as Commissioner, to me known to be the person described in and who executed the foregoing instrument, and acknowledged that he executed the same as his free act and deed as said Commissioner. Notary Public, State of Hawaii My commission expires: Jan. 4, 1997 All of that certain parcel of land situate at Hamakua, Island and County of Hawaii, State of Hawaii, described as follows: LOT 22, area 56.73 acres, more or less, as shown on Map 1, filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application No. 697; Being a portion of the land(s) described in Transfer Certificate of Title No. 364,419, Tax Map Key No. (3)4-3-011-001 I EXHIBIT A CC/ o ` ' A! P44 s b7SA697 Or TAK A8~ CH.'_KA1l_ Of COUISCI: EE DWYER IMANAKA SCHRAFF KUDO SMFGJA 9_ LEE _KEN- p qJ Tfl! MEYER & FUJIMOTO UNIT50 5fARS Dt9TRICT00, Attorneys at Law plgiFtlCT Gp IInWAI) A Law Corporation ; ~N 1 7 1995 PAUL A. SCHRAFF 2895-0 ~MIBLt RONALD V. GRANT 3832-0 o.d00y Ind TRACY TIMOTHY WOO 5908-0 y~AlpA Y.kI.CHINN. 1800 Pioneer Plaza 900 Fort Street Mall R E C E I V E D Honolulu, Hawaii 96813 Telephone: (808) 524-8000 Office of she cot Pn Attorneys for Plaintiff p,,. _ l_ 2 3 q rj ` IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII WESTERN FARM CREDIT SANK, ) CIVIL NO. 93-00318ACK a federal corporation, ) ORDER DIRECTING COMMISSIONER Plaintiff, ) TO EXECUTE AND DELIVER DEED TO COUNTY OF HAWAII Vs. ) HAMAKUA SUGAR COMPANY, INC.. ) et al., ) Hearing Date: October 11, 1994 Time: 3:00 p.m. Defendants. ) Judge- Alan C. Kay Trial Date: January 18. 1995 Time: 9:00 a.m. Judge: Alan C. Kay EXHIBIT B i C ORDER DIRECTING COMMISSIONER TO EXECUTE AND DELIVER DEED TO COUNTY OF HAWAII Plaintifrs'totion to Authorize Commissioner to Execute and Deliver Deeds Implementing Settlements, filed on October 3, 1994, was heard on October 11. 1994, before the Honorable Alan C. Kay. Urtited States District Judge. At the hearing, Paul A. Schraff, Esq. appeared for Plaintiff WESTERN FARM CREDIT BANK; Richard D. Wurdeman, Esq. appeared for Defendant COUNTY OF HAWAII; and Carl H. Osaki. Esq. appeared for Defendants THE KUKUIHAELE GROUP. The Court has reviewed the Motion and the papers filed in support thereof and the record in this case. The Court finds (i) that, pursuant to the Order Granting Trustee's Motion to Approve Settlement Among Western Farm Credit Bank, County of Hawaii and Trustee of Hamakua Sugar Company, Inc., entered in In re Hamakua Sugar Company Inc. Debtor, Case No. 92-00865 (Chapter 11), United States Bankruptcy Court for the District of Hawaii, on August 3. 1994 (the 'Bankruptcy Settlement Order"), and pursuant to this Court's August 3. 1994 Order Granting Plaintiff Western Farm Credit Bank's Motion to Approve Settlement Among Western Farm Credit Bank, the County of Ha% aii and Hamakua Sugar Company, Inc., Through Its Trustee, to Enter Judgment by Stipulation Pursuant to Settlement, and to Issue Supplementary Instructions to the Commissioner, filed July 14, 1994 (the "Foreclosure Settlement Order'), both of which Orders approved and anached the Senlement Agreement and Mutual Releases (the "Settlement Agreement") addressing certain vgh's and interests in and to specific portions of the property foreclosed in this proceeding. the COUNTY OF IIAWAII (the "County") has a right to obtain certain property designated in the Settlement Agreement; and ror+eor.ot ~ (ii) that good cause exists to grant the motion and to direct the Commissioner to sell and convey said property to the County, IT IS. THEREFORE, HEREBY ORDERED THAT: 1 • The motion is GRANTED with respect to the matters set forth below. 2. The Commissioner is authorized and directed to sell and convey to the COUNTY OF HAWAII, pursuant to a Commissioner's Quitclaim Deed, the property designated in Exhibit "A" attached hereto, together with all rights in and appurtenant to said property (the "Settlement Property'). 3. All parties to this action, and all parties claiming by, through, or under them, or any of them, are forever barred of and from any and all right, tide, interest, and claims, at law or in equity, in and to the Settlement Property. In addition, pursuant to Haw. Rev. Stal. § 634-51, as amended, any person claiming an interest by way of further encumbrances or purchases in respect to the Settlement Property, or any part thereof, whose interest arises from and after April 22, 1993. the date that a Notice of Pendency of Action was recorded in the Bureau of Conveyances and filed with the Land Court of the State of Hawaii, are barred by this Order, and other orders and judgments entered herein, if the persons claim throu-eh a party to this action. 4. Upon the delivery of said deed, title to the Settlement Property shall be vested in the COUNTY OF HAWAII, absolutely and in fee simple. M54697.ot 3 S. The Court expressly determines that there is no just reason to delay the entry of this Order as a final judgment and, pursuant to Rule 54(b), Fed. R. Civ. P., this Order shall he entered forthwith by the Clerk of this Court as a final judgment. DATED: Honolulu. Hawaii, JAN 1 7 1995 ALAN C. KAKI UNITED STATES DISTRICT JUDGE APPROVED AS TO FORM: Jul X vc HARD D. WURDEMAN Attorney for Defendant COUNTY OF HAWAII `NN l' CARL H-OSAKF~, Attorney for Defendants THE KUKUIHAELE GROUP W-It'. Porn CNVn Bmk• iiwA oUru Cr In I.C.a.10,9T.nOT I VACA. ORDER DI-ECTI]GCO.MmISSIONER TO E.\ECCTE AND DEIJ%ER DEED TO COUNTY OF HAWAII IGV99)01 4 EXHIBIT "A" All of those certain parcels of land situate in the Island and County of Hawaii, State of Hawaii, and designated upon the Tax Maps of the State of Hawaii, as follows: LOCATION: Honomaino, Kaihuiki, Puuohai and Maulua-iki X KEY TITLE AREA 3-4-4-6 Portion Land Patent Grant No. 3641, 10.208 acres Apana 2 3-4-4-16 Portion Land Patent Grant No. 3650, 1.050 acres Apana 1 LOCATION: Papaaloa and Kaiwilahilahi A KE TITLE AREA 3-5-3-30 Portion Royal Patent Grant No. 904 0.06 acre 3-5-3-64 Portion Royal Patent Grant No. 2729 0.008 acre LOCATION: Papaaloa, Kihalani and Manowaiopae TAX KEY TITLE AREA 3-5-4-1 Portion Royal Patent Grant No. 908 0.08 acre LOCATION: Waipunalei TAX KEY TITLE AREA 3-6-5-92 Portion Land Patent Grant No. 3688 0.765 acre LOCATION: Ollkala and Humuula TAX KEY TITLE AREA 3-9-1-33 Portion Land Patent Grant No. 3705 0.426 acre 3-9-1-35 Portion Royal Patent Grant No. 2467 0.08 acre LOCATION: Kaala, Kealakaha and Keehia TAX KEY TIT. 4-1-3-35 Porrion Royal Patent Grant No. 2049 0.17 acre 4-1-3-39 Portion Royal Patent Grant :lo. 2049 0.08 acre J:\Ham\cminr2 940629 1 V e LOCATION• Kaao TAX KEY TITLE AREA 4-2-2-19 Portion Royal Patent Grant No. 2494 0.065 acre 4-2-2-20 Portion Royal Patent Grant No. 2494 0.104 acre LOCATION: Kainehe and Koholalele TA KE IT TLE AREA 4-2-3-8 Portion Mahele Award No. 26-B 0.02 acre LOCATION: Kaohe 1st, Aamanu and Paauilo TAX KEY TTTLE AREA 4-3-1-13 Portion Royal Patent Grant No. 633 3.572 acres Together with a perpetual non-exclusive easement appurtenant to Tax Key 4-3-1-13 for access and utility purposes over, under and across Tax Key 473-1-2. LOCATION: Hauola and Opihilala A K TITLE AREA 4-3-3-9 A 45-foot wide strip of land at 2.71 acres Hauola, Hamakua, Hawaii described in Deed of Territory of Hawaii to Hamakua Mill Company dated May 12, 1910, recorded in Liber 327 at Page 441 LOCATION: Manienie GROSS UIJDIVIDED TAX KEY TITLE AREA I:JTEREST 4-3-4-15 Portion Royal Patent 0.06 acre U1jKiIG'r11 Grant.No. 1071 and Portion Royal Patent Grant No. 2122 LOCATION: Manienie, Kamoauau and Kamaui TAX KEY TITLE AREA 4-3-4-17 Portion Royal Patent Grant No. 2122 0.852 acre J.\Ham\Cmsnr2 540629 2 V LOCATION: Kalua, Heneheneula, Kaumoali and Kaunamano TAX KEY TITLE AREA 4-4-1-19 Portion Land Patent Grant No. 8072 0.09 acre LOCATION: Paauhau TAX KEY TITLE AREA 4-4-5-3 Portion Land Commission Award No. 0.248 acre 8452, Apana 14 Together With: A. Perpetual non-exclusive easements for roadway purposes over and across portion of Grant 9439 to Joe Rebeiro Gonsalves (Lots 42 and 43 of the Kaao Homesteads) being Tax Key 4- 5-03-15 owned by Takeshi Hagiwara as conveyed by indenture dated August 25, 1959 and recorded in the Bureau of Conveyances of Hawaii in Liber 3769 at Page 68. b. Non exclusive.-easements for roadway purposes over and across portion of Grant 9430 to Eliza Freitas Mendes (Lot 40 of the Kaao Homesteads), being Tax Key 4-5-03-06 owned by Kenzuchi Hagiwara as conveyed by indenture dated December 10, 1959 and recorded in said Bureau in Liber 3769 at Page 54. c. Non exclusive easements for roadway purposes over and across portion of Grant 9430 to Eliza Freitas Mendes (Lot 41 of the Kaao Homesteads), being Tax Key 4-5-03-16 owned by Kenzuchi Hagiwara as conveyed by indenture dated December 10, 1959 and recorded in said Bureau in Liber 3769 at Page 61. d. Perpetual, non-exclusive right and easement for road and ditch purposes over and across portion of Grant 2464 to Kaoo, being Tax Key 4-4-04-05 owned by Wachi, Inc. as conveyed by indenture dated August 23, 1968 and recorded in said Bureau in Liber 6220 at Page 314. e. Permanent easement rights-of-way for flume purposes through and across portion of Grant 3937 to w. Webb being Tax Key 4-4-10-05 and for ditch purposes through and across portion of Grant 393 to E. R. Lindsay being Tax Key 4-4-1-15 and portion of Grant 3850 to J. J. de Nobriga being Tax Key 4-4-01-16 owned by J. J. Nobriga Junior, as conveyed by instrument dated March 7, 1941 and recorded in said Bureau in Liber 1218 at Page 447. J.\Ham\C rtna 940629 3 - LOCATION: Paauhau, Weha, Makakuolo, Keahua 2nd and Keauhau 1st TAX KEY TITLE AREA 4-4-8-75 Portion Land Commission Award No. 1.53 acres 8404 LOCATION: Papalele, Waikaalulu, Kaapahu and Kaalua TAX KEY TITLE AREA 4-4-9-17 Portion Royal Patent Grant No. 3722 0.127 acre LOCATION: Namoku, Papuaa & Nienie GROSS UNDIVIDED TAX KEY TITLE AREA I34TER£ST 4-5-2-11 Portion Royal Patent 65.53 acres 13.11 acres Grant No. 1774 Land Commission Award: No. 7832 4-5-2-13 Land Commission Award 0.43 acre 0.42 acre No. 8141 LOCATION: Papanui, Haina, Namoku, Papuaa, Nienie and Paalaea TAX KEY TITLE AREA 4-5-2-49 Portion Land Commission Award No. 154,616 sq.ft. 7833 and Portion Royal Patent or 3.55 acres Grant No. 946 LOCATION: Kaao TAX KEY TITL° AREA 4-5-3-60 Portion Land Patent Grant ;lo. 8846 0.485 acre LOCATION: Namoku and Nienie GROSS UNDIVIDED TAX KEY TITL AREA AREA INTEREST 4-5-30-9 Portion Royal Patent 10.47 acres 2.09 acres Grant No. 177: LOCATION: ;Namoku TAX K=Y TITL AR--A 4-5-18-8 Port°_on Royal Patent Grant No. 1155 0.011 acre J 1,Ham\Cmsnr2 940629 4 ~2~~ LOCATIO~J: Kukuihaele and Lalakea TAX KEY TIC AREA • 4-8-4-12 Portion Kamehameha IV Deed to W. C. Lunalilo, recorded in Liber 0'082 acre 10, Page 55 LOCATION; Kukuihaele and Lalakea TAX K TL AREA 4-8-4-17 Portion Kamehameha IV Deed to 41,557 s q. C. Lunalilo, recorded in 9• ft. Liber lo, Page 55 or 0.954 acre J.\N4m\Cmsnr7 94C629 5 LOCATION: Kohalalele A K TITLE RE 4-2-5-1 Portion Mahele Award No. 26-B 1040 acres LOCATION: Hauola, Opihilala, Paauilo and Manienie TAX KEY TITLE AREA 4-3-7-1 (por) Royal Patent Grant No. 2048 57.00 acres LOCATION: Hauola, Opihilala, Paauilo and Manienie TAX KEY TITLE AREA 4-3-7-4 (por) Land Patent Grant No. 4967, Land 148.090 acres Patent Grant No. 5076 and Land Patent Grant No. 5477 LOCATION: Paauilo TAX KEY I•TL • AREA 4-3-9-2 Portion Land Patent Grant No. 3946, Portion Land Patent Grant No. 51.10 acres 3945, Portion Land Patent Grant No. 4340, Portion Land Patent Grant No. 4342 and Portion Land Patent Grant No. 4535 Together with a perpetual non-exclusive easement appurtenant to Tax Key 4-3-9-2 for access and utility purposes over, under and across Tax Key 4-3-8-1. LOCATION: Paauilo TAX KEY TITLE AREA 4-3-9-19 Land Patent Grant No. 3950, Land 110.9 acres Patent Grant No. 3951, Land Patent Grant No. 3952, Land Patent Grant No. 3962, Land Patent Grant No. 3963 and Land Patent Grant :JO. 4063 Together with a perpetual non-exclusive easement acc::rtenant to TAX KEY 4-3-9-19 for access and :.-:lily purposes ove_, under and across TAX KEY 4-3-1-3. 4-3-9-24 Royal Patent Grant No. 2441, Royal 169.:0 rcres Patent Grant No. 2442, Land Paters Grant too. 3964, Land Patent Grant :10. 4156, Land Patent Grant No. :216 and Portion Land Patent Grant No. :229 J \Mam%Cmsnr2 940525 6 `)21 appurtenant to TAXeKEYr4-3-9-24p foreaccessoandxutilite easement over, under and across TAX KEY 4-3-1-3. Y Purposes LOCATION: Paauilo TAX KKK( T TL RE 4-3-11-1 Lot 22, area 56.73 acres, Paauilo 56.73 acres Homesteads, 2nd Series, as shown on Map 1, of Land Court Application No. 697, being portion of the premises described in Transfer Certificate of Title No. 364,419. 4-3-11-2 Land Patent Grant No. 4597, Portion 306.275 acres Land Patent Grant No. 4934, Portion Land Patent Grant No, 4968, Portion Land Patent Grant No. 5175, Portion Land Patent Grant No.•5176, Portion Land Patent Grant No. 5177, L4nd Patent Grant No. 5245, Portion Land Patent Grant No. 5284 and Portion Land Patent Grant No. 5321 LOCATION: Paauilo TAX KEY TITLE AREA EA 4-3-12-6 Portion Land Patent Grant No. 5075 77.4 acres J.\Ham\Cmsnr2 940525 7 LOCATION. Kapulena, Waialeale I, Waialeale II, Waikoloa I, Waikoloa II, Niupuka and Hanapai TA E TITLE AREA 4-7-5-1 Portion Royal Patent Grant No. 670, •777.94 acres Portion Royal' Patent Grant No. 791, Portion Royal Patent Grant No. 868, Royal Patent Grant No. 1564, Royal Patent Grant No. 1764, Royal Patent Grant No. 1765, Royal Patent Grant No. 1768, Royal Patent Grant No. 1770, Royal Patent Grant No. 1883, Portion' Land Commission Award No. 9971, Apana 4, Portion Land Commission Award No. 9971, Apana 8 Together with a perpetual non-exclusive easement appurtenant to Tax Key 4-7-5-1 for access and utility purposes over, under and across Tax Keys 4-7-3-16, 4-7-3-18 and 4-7-4-2. LOCATION: Kapulena, Waialeale I, Waialeale II, Waikoloa I, Waikoloa II, Niupuka and Hanapai TAX KEY TITLE AREA 4-7-5-2 Portion Royal Patent Grant No. 1882, Portion Royal Patent Grant 38'57 acres No. 1776 4-7-5-3 Portion Royal Patent Grant No. 1882 1.43 acres LOCATION: Malanahae, Kapoaula, Keahakea, Kaauhuhu TI. TLE AREA 4-7-6-1 Portion Royal Patent Grant 110. 2449, Portion Land Co,~ission Award 214'00 acres No. 9971, Apana 2 LOCATION: Malanahae, Kapoaula, Haukoi, Keahakea, Kapulena. Waialeale I, Waialeale II, Puanui, Waikoloa I and Waikoloa II TAX KEY TITLE 4-7-6-5 Portion Royal Patent Grant NO. 2123 81.:0 acres Tcgether with a perpetual non-exc:usive easement appurtenant to TAX KEY 4-7-6-5 for access and utility purposes over, under and across TAX KEY 4-7-5-1. J. ?44m\CMSm2 940575 8 C Y 4-7-6-6 Portion Royal Patent Grant No. 167.70 acres 2124 and Portion Royal Patent Grant No, 670 Together with a perpetual non-exclusive easement appurtenant to TAX KEY 4-7-6-6 for access and utility purposes over, under and across TAX KEY 4-7-5-1. 4-7-6-7 Portion Royal Patent Grant No. 61.25 acres 2124 Together with a perpetual non-exclusive easement appurtenant to TAX KEY 4-7-6-7 for access and utility purposes over, under and across TAX KEY 4-7-5-1. 4-7-6-10 Portion Royal Patent Grant No. 791, 164.85 acres Portion Royal Patent Grant No. 1564, Portion Royal Patent Grant No. 1765, Royal Patent Grant No. 1763, Royal Patent Grant No. 1767, Portion Land Commission Award No. 9971, Apana 4 Together with a perpetual non-exclusive easement appurtenant to TAX KEY 4-7-6-10 for access and utility purposes over, under and across TAX KEY 4-7-5-1. LOCATION: Malanahae, Kapoaula, Keahakea, Kaauhuhu TA KEY TITLE AREA 4-7-6-18 Lot 16, Portion Royal Patent Grant 227.284 acres No. 2123, Portion Royal Patent Grant No. 2449, Portion Mahele Award No. 4-9, Portion Land Patent Grant 'to. 3003, Portion Land Commission Award No. 9971, Apana 2 4-7-6-20 Portion Land Patent Grant ?to. 4012 5.383 acres LOCATION: Keaa, Kalakalaula, Waikcekoe, Lalakea and Kukuihaele TAX KEY TITL AREA 4-8-3-5 Portion Land Commission Award 'to. 660.80 acres 8559-B. Apana 2 and Portion Land Commission Award No. 10287 Together with a perpetual non-exc_,;s:'.e easement appurtenant to Tax Key 4-8-3-5 for access and ut:l:ty purposes over, under and across Tax Key 4-8-2-5. I J.\mam\Cmsnr2 940525 9 1 ! n~ ~l V 1 AS TO ALL PA.2CrLLSS_ TOGETHER WITH: 1. All buildings, structures, and improvements thereon. 2. All appurtenant rights, including water rights and rights to utility, access, and water easements over portions of the "Foreclosure Property" (as defined in the "First Amended Find'ngs of Fact, Conclusions of Law, Order Granting Plaintiff Western Farm Credit Bank's Motion for Partial Summary Judgment and Decree of Foreclosure Filed January 3, 1994," which was filed on June 30, 1994, in Western Farm Credit Bank v Hamakua Sugar Company. IInc., Civil No. 91-00318ACK, United States District Court for the District of Hawaii,-and recorded in the Bureau of Conveyances of the State of Hawaii as Document No. (the "Decree of Foreclosure") for the benefit of, and appurtenant to, the property des_ribed above, all as provided in that certain unrecorded Crder Approving Settlement Agreement, filed on June 11, 1993, as amended and refiled on August 29, 1994, in In re Hamakua Sugar Company Inc., Case No. 92-00865, United States Bankruptcy Court for t:e District of Hawaii, and the agreement attached to said order (which order and agreement are collectively hereinafter referred to as the "Bankruptcy Settlement Order"). 3. Any and all easements appurtenant thereto, whether or not referenced above, for any purpose whatsoever. SUBJECT, HOWEVER, TO the appurtenant rights, including water rights and rights to utility, access, and water easements over portions of said property for the benefit of, and appurtenant to, portions of said Foreclosure Property, and other property, as provided in the Decree of Foreclosure or the Bankruptcy Settlement order. (0,693 01 10