HomeMy WebLinkAboutRES 374 Draft 03 1988-1992COUNTY OF HAWAi~ - STATE OF HAWAII
RESOLUTION N0. 3'74 ~':~
(DRAFT 3)
RESOLUTION FOR THE ABANDONMENT AND SALE OF
REMNANT AT PUNALU'U, DISTRICT OF KAU
WHEREAS, in 1988, by Ordinance No. 88-121, the County of
Hawaii, acting through its County Council and Mayor, upon the
recommendation of the Planning Commission for the County of
Hawaii and after extensive public hearings thereon, changed the
zoning designations for certain lands located in Punalu'u,
District of Ka'u, County and State of Hawaii for the
development of a resort; and
WHEREAS, said Ordinance No. 88-121 contains numerous
conditions on the landowner's uses of such lands; and
WHEREAS, prior to the landowner's application for the
change of zoning and the enactment of Ordinance No. 88-121, on
July 28, 1972, the landowner had obtained, after application
and hearings, the agreement of the Board of Land and Natural
Resources of the State of Hawaii, for the conveyance of the
State of Hawaii's asserted fee interest in and to a portion of
a "Government Beach Trail," which forms a part of the lands
rezoned in Ordinance No. 88-121, as more particularly described
in Exhibit "A" attached hereto, and referred to hereinafter as
the "Subject Parcel"; and
WHEREAS, on June 19, 1986, the State of Hawaii, through the
Chairman of the Department of Land and Natural Resources
conveyed to the landowner all of the State's title and interest
in and to the Subject Parcel in consideration of the payment of
the landowner of a sum of money, based upon an appraisal of the
fair market value of the Subject Parcel; and
WHEREAS, the landowner paid the amount required by law to
the State of Hawaii in consideration for the transfer of the
Subject Parcel; and
WHEREAS, a copy of the deed of the Subject Parcel is
attached hereto as Exhibit "B"; and
WHEREAS, the application for and the enactment of Ordinance
No. 88-121 contemplated the termination of the Subject Parcel
as a roadway and its replacement by an alternative roadway for
public use, which alternative roadway has long been completed
and which has been used by members of the public instead of the
Subject Parcel; and
WHEREAS, the substitution of the Subject Parcel with
alternative access was an issue which was raised, considered,
and resolved in the proceedings which resulted in the enactment
of Ordinance No. 88-121 wherein the termination and replacement
of the Subject Parcel is contemplated; and
WHEREAS, during the public hearings before the Planning
Commission and the County Council, the legality of the State's
conveyance of the Subject Parcel to the landowner was never
-2-
questioned by members of the public though the fact of such
conveyance was made known in such hearings; and
WHEREAS, in consideration of the State's approval of the
conveyance of the Subject Parcel, the landowner agreed not to
use the property in a discriminatory manner and to guarantee
access by the public to the shoreline at all times and to
preserve and to protect the historical sites in the area; and
WHEREAS, such conditions of the State's conveyance to the
landowner are consistent with the requirements and conditions
of Ordinance No. 88-121; and
WHEREAS, in 1990, more than two years after public hearings
on the change of zoning for the resort was completed and after
Ordinance No. 88-121 was duly enacted by the County of Hawaii
after public hearings, the Punalu'u Preservation and Culture
Committee challenged the State's capacity to convey the Subject
Parcel to the landowner by asserting that the State had no
ownership interest in the Subject Parcel at the time of the
conveyance; and
WHEREAS, the Punalu'u Preservation and Culture Committee
claimed in a lawsuit filed in the First Circuit (in which the
County of Hawaii was not named as a party and by which it would
not be bound) that the County of Hawaii has historically
included the Subject Parcel in its road inventory and
maintained portions of the Subject Parcel until 1975 and, as a
result thereof when considered in conjunction with applicable
-3-
State law, that the County is the owner of the Subject Parcel;
and
WHEREAS, there was evidence to the effect that the subject
parcel has been on the County road inventory as part of the
"Punalu'u Beach Road"; and
WHEREAS, based upon the evidence before it, the Circuit
Court of the First Circuit issued a Final Consent Decree and
Order on August 7, 1991 that stated that the County of Hawaii
held and continues to hold the fee title to the Subject Parcel;
and
WHEREAS, the landowner in this instance is applying for a
Special Management Area permit to commence the activities
authorized by Ordinance No. 88-121; and
WHEREAS, the decision by the Circuit Court in the
above-described action of the Punalu'u Preservation and Culture
Commitee has created a cloud on the title of the landowner
regarding the Subject Parcel; and
WHEREAS, the title question and uncertainty is an
impediment to the development of the project as contemplated in
such Ordinance with the consequent impact of delay in the
creation of new opportunities of employment in Ka'u; and
WHEREAS, the landowner's project proposal will be subject
to the requirements and the approval of the County of Hawaii
under the special management area laws; and
-4-
WHEREAS, the County of Hawaii, its designated agencies and
officers, enacted said Ordinance No. 88-121, on the assumption
and assertion that the Subject Parcel had been lawfully
conveyed to the landowner by the State of Hawaii, Department of
Land and Natural Resources, in accordance with the procedures
set forth in Chapter 171, Hawaii Revised Statutes and
accordingly, treated the Subject Parcel as if it no longer
existed as a separate parcel with an access function, such
Subject Parcel having been joined with adjoining landowner
parcels and a roadway having been created and placed in service
mauka of the Subject Parcel; and
WHEREAS, the County of Hawaii, by its County Council, has
the power to discontinue, vacate, close or abandon any road,
trail or way under Section 264-1, Hawaii Revised Statutes, and
Section 46-1.5(19), Hawaii Revised Statutes; and
WHEREAS, Hawaii County Code, Section 2-118 provides that
the County of Hawaii may dispose of real property found to be a
"remnant"; and
WHEREAS, Hawaii County Code Section 2-110(a)(3) defines
"remnant" as "a parcel of land economically or physically
unsuitable or undesirable for development, or utilization as a
separate unit by reason of location, size, shape, or other
characteristics"; and
WHEREAS, Hawaii County Code Section 2-118(3)(B) provides
that a remnant may be a "vacated, closed, abandoned or
-5-
discontinued road, street or alley or walk, ditch, or other
right-of-way"; and
WHEREAS, the landowner has already executed and recorded an
Easement Agreement with the State guaranteeing access to those
areas previously accessed by the Subject Parcel; and
WHEREAS, the County Council finds that the Subject Parcel,
which is a portion of the Government Beach Trail at Wailau and
Ninole, District of Ka'u, should be closed, discontinued,
vacated, and abandoned and further finds that the Subject
Parcel is both (1) economically and physically unsuitable and
undesirable for development by reason of its location, size,
and potential for liability to the County, and (2) an abandoned
and discontinued road for which there is a substitute; and
WHEREAS, the Chief Engineer has had an appraisal of the
property commissioned pursuant to Hawaii County Code,
Section 2-118(c), which appraisal has been submitted to the
County Council; and
WHEREAS, the Chief Engineer has submitted to the County
Council a proposed agreement between the County of Hawaii and
the landowner as additional consideration for this transaction
and said agreement is attached as Exhibit "C" hereto.
NOW, THEREFORE, HE IT RESOLVED BY THE COUNCIL OF THE COUNTY
OF HAWAII that the Subject Parcel be vacated, closed,
discontinued and abandoned as a public highway, trail or way
and further find that the Subject Parcel would be a remnant;
-6-
Dated at Kona, Hawaii, this 6th day of
1991.
COUNTY COUNCIL
County of Hawaii
Hilo, Hawaii
I hereby certify that the foregoing RESOLUTION was by
the vote indicated to the right hereof adopted by the COUNCIL
of the County of Hawaii on November 6 . 1991
ATTEST:
/__
~~' /
`' ~ l~
OUNTY LE~HAIRMAN & PRESIDING OFFICER
November
ROLL CALL VOTE
AYES NOES ABS EX
ARAKAKI X
DE LIMA X
DOMINGO
HALE
KOKUBUN X
LAI X
MAKUAKANE X
RUDDLE X
SCHUTTE X
6 2
Reference
RESOLUTION NO. ~"J'4 91
(DRAFT 3)
TNTRC)DIICF.n RV
EXHIBIT "A"
Portion of Government Beach Trail
wailau and Ninole, Kau, Island of Hawaii, Hawaii
Comprising the following portions of land:
1. Grant 828 to Kekaula.
2. R.P. 7476, L. C. Aw. 7313 to Kaawa.
3. R.P. 2785, L.C. Aw. 8979, Apana 1 to Kekapa.
4. Grant 821 to Holoua.
Being a strip of land fifteen (15.00) feet wide and
extending seven and one-half (7.50j feet on each side
of the following-described centerline:-
Beginning at the northeasterly end of this centerline
and on the southwesterly boundary of the land of Punaluu, R.P. _
6885, L. C. Aw. 7715, Apana 15 to L. Kamehameha, the true azimuth-
and distance from a concrete monument marked "31" being 310° 22'
286.00 feet, the coordinates of said monument marked "31"
referred to Government Survey Triangulation Station "HILL"
(PUEHU) being 3257.35 feet South and 2247.27 feet East, as shown
on Government Survey Registered Map 2395, thence running by
azimuths measured clockwise from True South:-
1. 47° 00' 135.00 feet;
2. 62° 30' 205.00 feet;
3. 59° 10' 329.00 feet;
4. 52° 10' 78.00 feet;
5. 57° 20' 151.00 feet;
6. 45° 30' 248.00 feet;
7. 43° 40' 173.00 feet;
8. 49° 40' 113.00 feet;
9. 55° 00' 79.00 feet;
10. 59° 20' 75.00 feet;
li. 66° 30' 54.00 feet;
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RECORDaTION REQUESTED -Y:
;GOC)IG A6= 01
19952 59
AFTER~RECORDATION, RETURN T0: i+.•~d.._.
OLi'L O~ IANO AND NATO?A~ AL30U(.C.ES
LaNO MANAGEJ.:ENf O~~WON
RETURN BY• HAIL ( ) PICKUP (~)
QllITCLAIM DEED
KNOW ALL MEN BY THESE PRESENTS:
That the STATE OF HAWAII, hereinafter referred to
as the "Grantor", by its Board of Land and Natural
Resources, acting pursuant to Section 171-51, Hawaii Revised
Statutes, by and with the approval of the Board of Land and
Natural Resources (hereinafter "Board") nt its meeting held
on July 28, 1972, for and in consideration of the sum of
ELEVEN THOUSAND FORTY-EIGHT AND NOJ100 DOLLARS ($11,048.00),
the receipt whereof is hereby acknowlndged, does hereby
remise, release and forever quitclaim unto C. BREWER
PROPERTIES, INC., formerly known as IiANAIIANA'INVESTMENT
CO., INC., a wholly-owned subsidiary of C. BREWER & CO.,
LTD., a Hawaii corporation, whose busi~ess and post office
.~
address is P. 0. Box 1826, Honolulu, Hawaii 96805,
_• hereinafter referred to as the "Grantee," its successors and
.~
'• assigns, absolutely and in fee simple. all of the right,
~'<•: 3
,•• fi..
•''~'~ title, interest, claim and demand of the State of llawaii, n
..i3. •.
4 ~~•.
:'•t and to a portion of a Government Beach Trail situate at
Wail au, Ka'u, Island of llawaii, State of liauaii, containing
'° an area of 0.769 acres, more or less, more particularly
described in Exhibit "A" and delineated on Exhibit "B", both
of which are attached hereto and made parts hereof, said
exhibits being, respectively, a survey description
designated C.S.F. No. 16,936 and dated 6eptember 28, 1973,
~J0,2 GO
and n survey map designated C.S.F. No. LG ,975 and 16,9JG and
dated September 28, 1977, bo tli prepared by tlic Survey
Division, Department of Accounting and General Scrviees,
State of ilawaii.
RESERVING TO Tf}E. STATE OF }IAWAII, ITS SUCCESSORS
AND ASSIGNS, THE FOLLONING:
(1j All minerals as hereinafter defined, in, on or
under the land and the right, on its own behalf or through
persons authorized by it, to prospect for, mine and remove
such minerals-and to occupy and use so much of the surface
of the ground as may be required for all purposes reasonably
extending to the mining and removal of such minerals by any
means whatsoever,-including strip mining. "Hinerals", as
used herein, shall mean any or ell oil, gas, coal,
phosphate, sodium, sulphur, iron, titanium, gold, silver,
bauxite, bauxitic clay, diaspore, boehmite, laterite,
gibbsite, alumina, all ores of aluminum and, without
, ~ limitation thereon, ell other mineral substances and ore
deposits, whether solid, gaseous or liquid, including all
geothermal resouxces, in, on or under the land, fast or
submerged; provided, that "minerals" shall not include Sand,
gravel. rock or other material suitable for use and used in
general construction in furtherance of the Grantee's
permitted activities on the land and not for sale to others.
(2) All surface and ground waters appurtenant to
the said land end the right on its own behalf or through
persons authorized by !t, to capture, divert or impound the
same and to occupy and use so much of the said land as may
be required in the exercise of this right reserved.
-2-
19952 Gi
(J) All prehlstorie and historic remains found in,
on or under snid land.
Provided, however, that as a condition precedent to
` the exercise of the rights reserved in Paragraphs 1 and 2,
......... :
Just compensation shall be paid to the Grantee for any of
Grantee's improvements taken.
SUDJECi, iIONEVER, TO TiIE FOLLOWING TERMS,
CONDITIONS AND COVENANTS:
1. That the use and enJoyment of the land herein
conveyed shall not be in support of any policy which
discriminates against anyone based upon race, creed, sex,
color, national origin or a physical handicap.
2.' That the public shall, at all times, have full
and uninterrupted passage along the seashore and free access
to Ninole Cove and other beach areas satisfactory to Grantor.
3. Disapproval by the Legislature by a two-thirds
vote of either the Senate or the House of Representatives or
? by maJority vote of both, in any•regular or special session
next following the date of this Quitclaim Deed.
TO HAVE AND TO HOLD the same, together with all the
rights, easements, privileges and appurtenances thereunto
belonging or in anywise appertaining or held and enJoYed
therewith unto Grantee, its successors and assigns,.subJect
,,:,:.:
'.. "' as aforesaid.
IN WITNESS WHEREOF, the STATE OF HAWAII, the
Grantor herein,' by its Doard of Land and Natural Resources,
has caused the seal of the Department of Land and Natural
Resources to be hereunto affixed and these presents to be
-~-
1`.)952 G2
executed this ~-~~=~'day of ~ ~ /_' 19 ;S~_. and
C. BREWER PROPERTIES, INC., for erly known as IiAWAIIANA
INVESTMENT CO., 1NC., a wholly-owned subsidiary of C. BAEW£R
.. b CO., LTD., the Grantee herein, has cnused these presents
-- to be executed this l9uJ day of .)w~t~ 1986.
APPROVED BY THE BOARD OF
LAND AND NATURAL RESOURCES
AT ITS HEFTING HELD ON
Juiy 28, 1972
SIATE OF HA All
By ~"
Chairman and Member
Board of Land and
Natural Resources
BY~~C`~'-rzt sr~~ ~.1 rA-v
Member
Board of Land and
Natural Resources
C. BREWER PROPEATIES,• INC.,
formerly known as HAWAIIANA
INVESTMENT CO., INC., a
wholly owned subsidiary of
C. BREW~~E}}R I,6',C~O.. , LSD.
Its ~ C
Its Iu~ra.Fan.y
~A OVED f~dRM
(iiUJ' ~!'Y'~CnP1'°.' ~Crr O~ 1~A•vll
-4-
' 19952 G'f
r~~~`
J
STATE OF IiAWAiI
SUn VEY OIVIS ION
DEPT. Of ACCOV LATINO AND G£NEnAL SEnVICE!
:.a.r. „. 16,936 „,„o~„~„ SeoteaSer 29, 1973
Portion of Oorerrwcrtt 9each '^-sil
_sland of P^:ali
-"~ ~ ~ ~ "~~ - 'lziinu and _71rolc, }:eu; r ~ , Fav!_1
Co.-roris±ng the folltr.: ing por=!ons of ]an3:
1. Grant 828 to Y.ekauln.
2. R.P. 7476, L.C.P.v. 7313 to }-eve.
3. P,.P. 2785, L.C.Av. 8979, P_'na 1 to Y.eY.tpa.
4. G_-~~t 821 to goloua.
_ 3e1ng a s:ri~ of lsd fifteen (1$ 00) feet vide end
.~ ~~ e:Gec3!ag seven end one-half (7.50) reef oo each side
-- I of the folla_•in6-described centerline:-
3eginning at the northessterly en3.of this centerline and on
t5_ southwesterly boundary of tha land of Punaluu, R.P. 6985, L.C.Av. TT15,
;.xna 15 to L. $z~ehaneha, the true nzlcuth and distaace f.oc a concrete
aonuaetlt ^.lrked "31" being 3101 22' 286.00 feet, the coordimtes of said
emuoent corked "31" referred to Government SurYey TYiengulat!oa Station
".'LTLL" (PS3U) being 3257.35 feet South and 2'47.27 feet =ast, as ahtrm
oa Cm e__ =•at St.rvey 3egistered T•:ap 2395, thence numiog by ezimuths
eeastted clo_k•ise troy 1Yue South:- •
1. 47' 00' 135• feet;
.:•:<.:.:......_.... .. ' 2. 62' 30' 205.00 feet;
3•' S9' 10' 329.00 feet; .
k. j~ 10' 78.00 feet;
5. 97' 20' 12.00 feet;
6. 45` 30' 248.00 f_et;
7, 43' 40' 173.00 feet;
S• 55' ~' 79•~ feet;
l0. 5y '~' 75•~ feet.
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(RE`!15£.D MAY 1980)
~ OLD GovERN1/1ENT ROAD
f"'"~" t'-nol o PARCELS 1 AND 2
r° and Portion of
/ Government Beech Trai I
t`{rnolt ynd Wailau
Kau, le land of Hawan, Hawa~~
. s~ai~ r ~nEXHIBIT~iigrr
STATE OF HAWAII
COUNTY OF HAWAII
On this
me appeared
who, being by me duly
the
day of
SS.
to me
1991, before
personally known,
sworn, did say that is
of PUNALU'U DEVELOPMENT, INC., a
Hawaii
corporation, and that the seal affixed to the foregoing
instrument is the corporate seal of said corporation and that
said instrument was signed and sealed in behalf of said
corporation by authority of its Board of Directors, and the
said Officer acknowledged said instrument to be the free act
and deed of said corporation.
Notary Public, State of Hawaii
STATE OF HAWAII
COUNTY OF HAWAII
My commission expires:
SS.
On this day of 1991, before
me personally appeared LORRAINE R. INOUYE, to me personally
known, who, being by me duly sworn, did say that she is the
Mayor of the COUNTY OF HAWAII, a municipal corporation of the
State of Hawaii; that the seal affixed to the foregoing
instrument is the corporate seal of said County of Hawaii; that
the foregoing instrument was signed and sealed in behalf of the
COUNTY OF HAWAII by the authority given to said Mayor of the
COUNTY OF HAWAII by Section 5-1.3, Chapter 1, Article V of the
County Charter, COUNTY OF HAWAII (1991), as amended, and said
LORRAINE INOUYE acknowledged said instrument to be the free act
and deed of said COUNTY OF HAWAII.
Notary Public, State of Hawaii
My commission expires:
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(REVISED MAY 1980)
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ATTACHI~Ft~T "B"
~y
m'
AGREEMENT
This Agreement made this day of
1991, by and between PUNALU'U DEVELOPMENT, INC., a Hawaii
corporation which has its principal place of business at
P.O. Box 85, Pahala, Hawaii 96777, hereinafter referred to as
"PDI", and the COUNTY OF HAWAII, hereinafter referred to as
"COUNTY",
W I T N E ~S S E T f~:
WHEREAS, the COUNTY is ready, willing and able to sell
and PDI is ready, willing and able to purchase a portion of the
parcel located at TMK: (3) 9-5-19:11, said portion to be more
specifically described in the map attached hereto as Attachment
"A", hereinafter referred to as "Property"; and
WHEREAS, the authorization for this purchase is made
pursuant to Hawaii County Council Resolution No. ;
NOW, THEREFORE, in exchange for the mutual agreements,
covenants, promises and conditions contained herein, the
parties agree as follows:
1. Purchase of Property. Within one hundred twenty
( 120 days after the adoption of Resolution No. 374-91,
Draft 3, PDI agrees to deliver the sum
of
DOLLARS
to the
Department of Finance, County of Hawaii, as full and complete
payment for the purchase of the Property. Upon receipt of the
above amount, the COUNTY will
EXHIBIT
deliver to PDI a duly executed and recordable quitclaim deed, a
copy of which is attached hereto and incorporated herein,
effectively conveying its interest in the Property to PDI.
2. Pos t-purc hase Obliga tions.
A. PDI will submit and pursue an application
for a Special Management Area (SMA) Permit for its planned
resort improvements.
B. Subject to the provisions of Section 4
hereof, and prior to the issuance of any certificate of
occupancy for the resort hotel, PDI agrees to provide, commence
funding and/or constructing the following improvements to the
Punalu'u County Beach Park and along the shoreline of PDI's
property:
1. A continuous pedestrian trail with lateral
access to the shoreline from the Beach Park to Ninole Cove will
be constructed. In other words, pedestrians will be permitted
to leave the trail and to cross PDI's property to reach the
shoreline. The configuration and location of said trail to be
developed in consultation with the Advisory Group; subject,
however, to final approval by appropriate governmental
agencies.
2. Fifteen (15) parking spaces will be added to
the existing thirty-five (35) parking spaces at the Heach Park
with the configuration and location of these additional parking
spaces to be developed in consultation with the Advisory Group;
-2-
subject, however, to final approval by appropriate governmental
agencies.
3. Realignment of the access road from Alanui
Road to the Punalu'u County Beach Park parking lot in general
conformance with the map attached hereto as Attachment "B", but
to be more further developed in consultation with the Advisory
Group; subject, however, to final approval by appropriate
governmental agencies.
4. A picnic pavilion at the Punalu'u County
Beach Park with its location to be determined in consultation
with the Advisory Group; subject, however, to final approval by
appropriate governmental agencies.
5. A private access road with limited parking
facilities which extends toward the shoreline on the northeast
side of Ninole Cove area for use by the general public with the
configuration and location to be developed in consultation with
the Advisory Group; subject, however, to final approval by
appropriate governmental agencies. It is understood however,
that PDI expressly reserves the right to realign the access
road in the future, with said alignment to be developed in
consultation with the Advisory Group, subject, however, to
final approval by appropriate governmental agencies.
6. PDI will also propose for the County's
consideration an access road which would extend through the
existing Punalu'u County Beach Park as well as the proposed
park expansion area for public use with limited parking
-3-
facilities. Due to the proposed location of the access road,
it shall be understood that construction of said access road
will be contingent upon obtaining proper authorization from the
appropriate County governmental agency, and that the
configuration and location as well as use regulations for said
access road are to be developed in consultation with
appropriate governmental agencies.
7. PDI shall convey to the County of Hawaii its
fee simple interest in and to the lands underlying the Hawaii
County Punalu'u Beach Park as well as its fee simple interest
in and to an additional approximately three(3) acre parcel for
park use, adjoining the Hawaii County Punalu'u Beach Park, as
shown in its master plan, which configuration and actual size
shall be developed in consultation with the appropriate
governmental agencies.
3. Advisory Group. Subject to the provisions of
Section 4 hereof, PDI will commence the organization of a group
known as the Advisory Group to review and comment upon both the
Shoreline and Pond Management Plan already submitted by PDI and
such other proposed plans as may arise in the future which
address the shoreline and pond management. Such Advisory Group
shall consist of representatives of the Punalu'u resort
project, appropriate governmental officials, and members of
the general public.
-4-
4. Conditions.
A. PDI reserves the right, in its sole
discretion, at any time within five (5) years from the date
hereof to rescind the purchase of the Property and to reconvey
said Property to the COUNTY in which event PDI shall be
relieved of any obligations set out in Sections 2 and 3 above.
B. Upon said reconveyance the COUNTY will
retain the sum paid to the COUNTY by Punalu'u Development, Inc.
for the Property.
5. Amendments. This Agreement may be amended by
mutual written agreement between the parties at any time.
6. Entire Agreement. This Agreement sets forth the
entire understanding of the parties, and it may not be changed
except by written document signed by both parties hereto.
7. Assigns. This Agreement shall be binding upon,
and inure to the benefit of the parties hereto, and their
respective heirs, successors and assigns.
8. Scope of Contract. Nothing in this agreement
shall establish or is purported to establish Special Management
Area (SMA) or shoreline setback use conditions or any use
conditions which are or may be imposed as part of any land use
approvals for the use of the Property or real property which is
owned or controlled by PDI or its shareholders. This agreement
reflects the purchase price value or consideration for the sale
of the Property.
-5-
9. No Warranty. The conveyance to PDI shall be
without warranty as to title or use.
10. Satisfaction of Quitclaim D ed Covenant. The
quitclaim deed contains a proposed covenant that access to the
shoreline and Ninole Cove shall meet the satisfaction of the
COUNTY. The satisfaction of the provision of paragraph 2 of
this Agreement shall not be considered to be satisfaction of
the covenant set forth in the proposed quitclaim deed.
11. Applicable Law. This Agreement shall be governed
and construed in accordance with the laws of the State of
Hawaii.
IN WITNESS WHEREOF, the parties herein have signed
this instrument on the day and year first above written.
COUNTY OF HAWAII
By
LORRAINE R. INOUYE
Its Mayor
"COUNTY"
PUNALU'U DEVELOPMENT, INC.
By
Its
"PDI"
APPROVED AS TO FORM AND LEGALITY:
Deputy Corporation Counsel
0035k/0489w
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(Revised: November 4, 1991)
Return by Mail (XX) Pickup ( ) To:
Office of the Corporation Counsel
County of Hawaii
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
QUITCLAIM DEED
KNOW ALL MEN BY THESE PRESENTS:
THIS INDENTURE, made and entered into this
day
of , 19 , by and between the COUNTY OF
HAWAII, a municipal corporation and a political subdivision of the
State of Hawaii, whose principal place of business and mailing
address is 25 Aupuni Street, Hilo, Hawaii 96720 (the "Grantor"), and
PUNALU'U DEVELOPMENT, INC., a Hawaii corporation, whose principal
place of business and post office address is at Suite 740, Pacific
Tower, 1001 Bishop Street, Honolulu, Hawaii 96813 (the "Grantee');
SYSTE
EXHIBIT r/
W I T N E S S E T A•
WHEREAS, at its scheduled meeting of November 6, 1991, the
County Council of the County of Hawaii adopted Resolution No. 374-91
(the "Resolution"), which Resolution provides in part, for the
vacation, closure and abandonment by Grantor of that certain trail
situate at wailau and Ninole, District of Ra'u, Island and County of
Hawaii and more particularly described in Exhibit "A" attached
hereto and hereby made a part hereof for all purposes and delineated
in Exhibit "B" attached hereto and hereby made a part hereof for all
purposes; and, further, including such portions of the trail which
may lie outside of the metes and bounds designation or mapped area
of the trail;
WHEREAS, the Resolution further authorizes the sale of such
trail as a remnant to the Grantee herein, as the abutting landowner;
NOW, THEREFORE, for and in consideration of the sum of TEN AND
NO/100 DOLLARS ($10.00) and other good and valuable consideration
paid to Grantor, the receipt whereof is hereby acknowledged, Grantor
does by these presents remise, release and quitclaim unto said
Grantee, as ITS SOLE PROPERTY, absolutely and in fee simple:
-all of that certain real property more
particularly described in Exhibit "A" attached
hereto and incorporated herein by reference and
delineated in Exhibit "B" attached hereto and
incorporated herein by reference, and such
portions thereof which may be a part of the "Old
Beach Trail" at Wailau and Ninole and may be owned
by the grantor by grant, purchase, judgment,
prescription or otherwise, which may lie outside
of the area described in Exhibits "A" and •B," but
which constitute a part of the said trail.
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And the reversions, remainders, rents, issues and profits hereof
and all of the estate, right, title and interest of 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 thereunto belonging or appertaining or
held and enjoyed therewith unto said Grantee as aforesaid,
absolutely and forever.
SUBJECT, HOWEVER, TO THE FOLLOWING TERMS, CONDITIONS AND
COVENANTS:
1. That the use and enjoyment of the land herein conveyed
shall not be in support of any policy which discriminates against
anyone based upon race, creed, sex, coloc, national origin or a
physical handicap.
2. That the public shall, at all times, have full and
uninterrupted passage along the seashore and free access to Ninole
Cove and other beach areas satisfactory to Grantor.
IT IS MUTUALLY AGREED that the terms "Grantor' and 'Grantee," as
and when used herein, or any pronouns used in place thereof, shall
mean and include the masculine or feminine, the singular or plural
number, individuals or corporations and their and each of their
respective successors, successors in trust, heirs, legal
representatives and permitted assigns, according to the context
thereof.
AND IT IS FURTHER AGREED that the Grantor, by this indenture,
intends to sell and transfer to the Grantee all of the Grantor's
-3-
interest in the area described above as the Portion of Government
Beach Trail which is owned by the Grantor by grant, purchase,
judgment, prescription or otherwise. To the extent that the trail
as it is currently constituted lies outside of the metes and bounds
designation or map contained in Exhibits "A" and "B," the Grantor
intends and hereby remises, releases and transfers to Grantee all of
that portion of real property which is a part of the lateral
shoreline trail known as the Portion of Government Beach Trail,
which lies outside of the metes and bounds description or map,
excepting the rights described hereinabove in paragraphs 1 and 2 of
the TERMS, CONDITIONS AND COVENANTS of this instrument first written
above.
IN WITNESS WHEREOF, Grantor and Grantee have caused these
presents to be duly executed the day and year first above written.
APPROVED AS TO FORM AND
LEGALITY•
Deputy Corporation Counsel
COUNTY OF HAWAII
By
LORRAINE R. INOUYE
Its Mayor
Grantor
RECOMMEND APPROVAL:
C ie Engineer
Dept. of Public Works
PUNALU'U DEVELOPMENT, INC., a
Aawaii corporation
By
Its
Grantee
-4-
STATE OF HAWAII )
SS.
COUNTY OF HAWAII )
On this day of , 19 , before me
personally appeared LORRAINE R. INOUYE, to me personally known,
who, being by me duly sworn, did say that she is the Mayor of the
County of Hawaii, a municipal corporation of the State of Aawaii;
that the seal affixed to the foregoing instrument is the corporate
seal of the said County of Hawaii; that the foregoing instrument
was signed and sealed in behalf of the County of Hawaii by
authority given to said Mayor of the County of Hawaii by
Section 5-1.3(g) of the County Charter, County of Hawaii (1991),
as amended; and said LORRAINE R. INOUYE acknowledged said
instrument to be the free act and deed of said County of Hawaii.
Notary Public, State of Hawaii
My commission expires: .
-5-
STATE OF HAWAII )
CITY AND COUNTY OF HONOLULU ;SS.
On this day of
appeared
19 , before me
to me personally known, who, being
by me duly sworn, did say that he is the
of
PUNALU'U DEVELOPMENT, INC., a Hawaii corporation; that the seal
affixed to the foregoing instrument is the corporate seal of said
corporation; that said instrument was signed and sealed in behalf
of said corporation by authority of its Board of Directors; and
the said
acknowledged said instrument to be
the free act and deed of said corporation.
Notary Public, State of Hawaii
My commission expires:
-6-