HomeMy WebLinkAboutRES 351 Draft 01 2008-2010 J,<V Os M '''
COUNTY OF HAWAII I Ak.' ='li STATE OF HAWAII '
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RESOLUTION NO. 351 10
A RESOLUTION AUTHORIZING AND RATIFYING THE AMENDMENT OF THE GRANT
OF NON- EXCLUSIVE EASEMENT FOR LIMITED PUBLIC ACCESS OVER PRIVATE
ROADWAYS FOR TEMPORARY MAMALAHOA BYPASS THROUGH HOKULI`A
PHASE I AND HALEKI`I STREET, IN THE DISTRICTS OF NORTH AND SOUTH KONA,
ISLAND, COUNTY AND STATE OF HAWAII.
WHEREAS, 1250 Oceanside Partners ( "Oceanside ") is the owner of those certain parcels
located in the Districts of North and South Kona, County and State of Hawai `i, and being the
following Tax Map Key numbers:
TMK: (3) 7 -8- 010:098, in North Kona
TMK: (3) 7- 9- 005:081, in North Kona
TMK: (3) 7 -9- 006:038, in North Kona
TMK: (3) 7 -9- 012:034, in North Kona
TMK: (3) 8 -1- 035:001 (portion), in South Kona (Haleki`i Street)
TMK: (3) 8- 1- 035:004, iii South Kona;
and
WHEREAS, the Hawaii County Council authorized the County administration to enter
into a Development Agreement with Oceanside, dated April 20, 1998, and rezoned certain of
Oceanside's lands to enable the Hokuli`a development; and
WHEREAS, as a condition of said Development Agreement and rezonings, as well as
pursuant to the Agreement for Regional Traffic Improvements dated September 16, 1999,
Oceanside is legally obligated to construct a Mamalahoa Bypass Highway through Hokuli`a,
from Ali`i Drive in Keauhou, through an intersection with an extension makai of Haleki`i Street,
and continuing to a southern connection with Mamalahoa Highway in Napo`opo`o, to relieve
serious traffic congestion on Mamalahoa Highway; and
WHEREAS, Oceanside has substantially completed Phase 1 of said Mamalahoa Bypass
Highway ( "Bypass Phase 1 "), from Keauhou going south, including the extension of Haleki`i
Street and its intersection with the Mamalahoa Highway Bypass, but due to factors such as the
injunction in Kelly, et al. v. 1250 Oceanside Partners, et al., Civil No. 00- 1- 0192K, and the
current worldwide contraction of development financing, Oceanside has not yet been able to
complete said Bypass Phase I and Haleki`i Street extension intersection to dedicable condition;
and
WHEREAS, the Hawai`i County Council has worked with the County administration to
amend Oceanside's rezoning ordinances to allow for the use of the Bypass Phase I through its
intersection with the Haleki`i Street extension to Mamalahoa Highway, as a temporary
Mamalahoa Bypass on a trial basis during the hours of 3:30 to 6:30 p.m., Monday through Friday
(except holidays), conditioned on the County providing various highway safety improvements
for the affected communities; and
WHEREAS, the Hawaii County Council has, through amendment of Ordinance 08 -64,
authorized the County administration to use either an easement or dedication for said trial use of
the Phase I Bypass through Haleki`i Street; and
WHEREAS, the Hawaii County Council, through Resolution 41 -09 passed on
January 12, 2009, authorized the acceptance of the Grant of Non - Exclusive Easement For
Limited Public Access Over Private Roadways from 1250 Oceanside Partners, which a
termination date of September 4, 2009; and
WHEREAS, the Hawai`i County Council, through the passage of Resolution 231 -09 on
_September 2, 2009, authorized the extension of the grant of easement for limited public access
through March 4, 2010; and
WHEREAS, the Hawai`i County Council, through the passage of Resolution 297 -10 on
February 3, 2010, authorized the further extension of the grant of easement for limited public
access through September 4, 2010; and
WHEREAS, the County of Hawaii, through its Mayor and Director of Public Works, has
negotiated a long -tern solution to help alleviate traffic in the Kainaliu corridor with
1250 Oceanside Partners;.and
WHEREAS, Oceanside has, for the benefit of the community, graciously consented to
extend the time for the proposed Grant of Non - Exclusive Easement for Limited Public Access
Over Private Roadways, increase the usage by allowing traffic in both directions and extending
the hours from 6:30 a.m. to 6:30 p.m. daily; and
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WHEREAS, the County of Hawai`i seeks to extend this amended grant of easement for
limited public access through September 4, 2013, as shown in the Amendment attached hereto as
Exhibit "1."
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF
HAWAII that it ratifies the Amendment to the Grant of Non - Exclusive Easement For Limited
Public Access Over Private Roadways as set forth in Exhibit "1" attached hereto.
BE IT FURTHER RESOLVED that a copy of this resolution be forwarded to:
(1) Mayor William P. Kenoi; (2) the Department of Public Works; (3) Deputy Corporation
Counsel Gerald Takase; and (4) 1250 Oceanside Partners, 76 -6831 Ali`i Drive, Suite K15,
Kailua -Kona, Hawai`i 96740.
Dated: Kona , Hawai`i, this 8th day of July , 2010.
INTRODUCED BY:
C LINTY OF HAWAI`I
COUNTY COUNCIL ROLL CALL VOTE
County of Hawai`i AYES NOES ABS EX
Hilo, Hawaii ENRIQUES X
FORD X
I hereby certify that the foregoing RESOLUTION was by GREENWELL X
the vote indicated to the right hereof adopted by the COUNCIL of the HOFFMANN X
County of Hawai`i on July 8, 2010
IKEDA X
NAEOLE - BEASON X
ATTEST: ONISHI X
YAGONG X
YOSHIMOTO X
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Reference: C- 838 /PWIRC -79
COUNTY CLERK CHAIRPERSON PRESIDING OFFICER RESOLUTION NO. 351 10
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LAND COURT REGULAR SYSTEM
(AREA ABOVE RESERVED FOR RECORDING INFORMATION)
After Recordation, Return by ® Mail or n Pick -up Phone #:
FILL IN NAME AND ADDRESS BELOW:
Office of the Corporation Counsel (GT)
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
DOCUMENT CONTAINS PAGES
TITLE OF DOCUMENT: AMENDMENT TO THE GRANT OF NON - EXCLUSIVE
EASEMENT FOR LIMITED PUBLIC ACCESS OVER PRIVATE ROADWAYS
PARTIES TO DOCUMENT
GRANTOR: 1250 OCEANSIDE PARTNERS
78 -6831 Ali`i Drive, Suite K -15
Kailua -Kona, Hawaii 96740
GRANTEE: COUNTY OF HAWAII
25 Aupuni Street
Hilo, Flawai`i 96720
AFFECTS TAX MAP KEYS: (3)7 -8- 010:098; 7- 9- 005:081; 7- 9- 006:038; 7 -9- 012:034;
8- 1- 035:001 (por.); and 8 -1- 035:004.
I
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EXHIBIT "1"
AMENDMENT TO THE GRANT OF NON - EXCLUSIVE EASEMENT FOR
LIMITED PUBLIC ACCESS OVER PRIVATE ROADWAYS
THIS AMENDMENT TO THE GRANT OF NON - EXCLUSIVE EASEMENT FOR
LIMITED PUBLIC ACCESS OVER PRIVATE ROADWAYS, made this
day of , by and between 1250 OCEANSIDE PARTNERS, a
Hawai`i limited partnership, whose address is 78 -6831 Ali`i Drive, Suite K -15, Kailua -Kona, Hawai`i
96740, hereinafter called the "Grantor," and the COUNTY OF HAWAII, a municipal corporation of
the State of Hawai`i, whose principal place of business and mailing address is 25 Aupuni Street, Hilo,
Hawaii 96720, hereinafter called the "Grantee,"
• WITNESSSETH:
WHEREAS, Grantor and the Grantee entered into a Grant of Non - Exclusive Easement For
Limited Public Access Over Private Roadways, dated March 9, 2009, and recorded in the Bureau of
Conveyances of the State of Hawaii as Document No. 2009 - 040018, for a conditional, temporary and
non- exclusive easement over portions of the Mamalahoa Highway Bypass and the Haleki`i Street
Extension; and
WHEREAS, by a Grant of Non - Exclusive Easement For Limited Public Access Over Private
Roadways, dated September 3, 2009, this grant of easement was extended for an additional six (6)
months, through March 4, 2010; and
WHEREAS, by an Extension of Grant of Non - Exclusive Easement for Limited Public Access
Over Private Roadways, dated February 22, 2010 and recorded in the Bureau of Conveyances of the
State of Hawaii as Document No. 2010- 026813, this grant of easement was further extended for an
additional period of six months, through September 4, 2010; and
WHEREAS, Grantor and Grantee wish to further amend the Grants of Non- Exclusive
Easement.
NOW, THEREFORE, in consideration of the promises, mutual covenants and agreements
hereinafter contained, the Grantor and Grantee hereto agree as follows:
1. Term: The term of the easement for the conditional, temporary and non- exclusive easement
over portions of the Mamalahoa Highway Bypass and the Haleki`i Street Extension, is
extended for a period of three years, through September 4, 2013, or sooner if the roadway is
dedicated.
2. County's Hours of Operation: The Mamalahoa Highway Bypass and Haleki`i Street shall
be open to the public twelve (12) hours a day (6:30 a.m. - 6:30 p.m.), seven (7) days a week, to
two -way traffic, both north and southbound.
3. Insurance: The Grantee will procure and maintain, at its own cost and expense, in MI force
and effect throughout the term of this easement, comprehensive general liability insurance, or
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its equivalent form and character of indemnity acceptable to the Grantor, in an amount of at
least $2,000,000 for each occurrence per claimant with an insurance company or companies
licensed to do business in the State of Hawaii or through the County of Hawai`i's Self
Insurance Fund as set forth in Chapter 2, Article 29, Sections 2 -156 through 2 -160, Hawaii
County Code. The policy or policies of insurance shall name the Grantor as an additional
insured. The insurance shall cover the entire easement area and any claims that may be made
for bodily injury or property damages as a result of the general motoring public's use of the
easement area or as a result of this grant of non - exclusive easement.
4. Effective Date: This amendment will take effect on Tuesday, June 1, 2010, and shall be .
immediately forwarded to the Hawaii County Council for its ratification.
5. Cancellation of the Easement Agreement: Either the County or Oceanside can cancel this
amended easement with sixty (60) days' written notification to the other party.
6. Development Agreement: This amended easement will not alter the terms, conditions or
obligations that the parties have to one another under the Development Agreement.
7. Emergency Situations: There may be emergency situations when the Mamalahoa Highway
Bypass could be opened for use by the public. The County and Oceanside agree that upon the
request of County, through its Director of Public Works or his designated representative,
Oceanside is willing to allow the Mamalahoa Highway Bypass to be opened for two -way
traffic, if necessary, at other times than stated above, upon Oceanside's consent, and that all
provisions as set forth above and in the original grant of easement and its amendments shall be
applicable.
8. Remaining Conditions. All other terms and conditions of the Grant of Non - Exclusive
Easement for Limited Public Access Over Private Roadways and its subsequent extensions
that have not been amended shall remain in full force and effect.
9. Counterparts; Facsimile Signatures. 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 agreement, binding all of the parties hereto, notwithstanding all of the parties are not
signatory to the original or the same counterparts. For all purposes, including, without
limitation, recordation, filing and delivery of this instrument, duplicate unexecuted pages of
the counterparts may be discarded and the remaining pages assembled as one document. The
submission of a signature page transmitted by facsimile (or similar electronic transmission
facility) shall be considered as an "original" signature page for purposes of this agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year
first above written.
1250 OCEANSIDE PARTNERS
By RED HILL 1250, INC.
•
By L/ 1 `` / G
jie tsb
COUNTY OF HAWAII
By
RECOMMEND APPROVAL:
WARREN H.W. LEE
Director of Public Works
APPROVED AS TO FORM
AND LEGALITY:
GERALD TAKASE
Deputy Corporation Counsel
Amendment to the Grant of Non-Exclusive
Easement for Limited Public Access Over
Private Roadways
1250 Oceanside Partners
County ofHawai'i
TMKs: (3)7 -8- 010:098; 7 -9- 005:081; 7 -9- 006:038;
7- 9- 012:034; 8- 1- 035:001 (por.); and
8 -1- 035:004
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IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year
first above written.
1250 OCEANSIDE PARTNERS
• By RED HILL 1250, INC.
By
COUNTY OF HAWAII
By 7 ; �.
RECOMMEND APPROVAL:
1 livuu
WARREN H.W. LEE
Director of Public Works
APPROVED AS TO FORM
AND LEGALITY:
GE TAKASE
Deputy Corporation Counsel
Amendment to the Grant of Non - Exclusive
Easement for Limited Public Access Over
Private Roadways
1250 Oceanside Partners
County of Hawaii
TNYIK.s: (3)7- 8- 010:098; 7- 9- 005:081; 7 -9- 006:038;
7- 9- 012:034; 8- 1- 035:001 (por); and
8 -1- 035:004
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STATE OF HAWAII )
) SS.
COUNTY OF HAWAII )
On l 44i E-a I J- 1 , before me personally appeared C.140 4 a
, to me personally known, who, being by me duly sworn or
affirmed, did say that such person executed the foregoing instrument as the free act and deed of
such person, and if applicable in the capacity shown, having been duly authorized to execute such
instrument in such capacity.
• 1, , otary Public, State of Hawai`i
!\ OTAAy 3 ; Printed Name: L! L thcoti
N0.09.49 G ,
PUB 0 I My commission expires:
1 1— 9-1
•
s fOF�P�P
NOTARY CERTIFICATION STATEMENT
Document Identification or Description: Amendment to the Grant of
Non - Exclusive Easement For Limited Public Access Over
Private Roadways. `�0� LSIMp;
Doc. Date: or io.Undated at time of notarization. O TA :\
No. of Pages: � Jurisdiction: 14 Circuit NO. 09-493
() (in which notarial act is performed) • A B ` \G J
i
ignature of Notary Date of Notarization and • i f OF H \
Certification Statement
L Sin J
Printed Name of Notary
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STATE OF HAWAII )
) SS.
COUNTY OF HAWAII )
On JUN - 2 2010 , before me personally appeared WILLIAM P. KENOI,
to me personally known, who, being by me duly swom, did say that WILLIAM P. KENOI is the
Mayor of the County of Hawai`i, a municipal corporation of the State of Hawaii; that the seal affixed
to the foregoing instrument is the corporate seal of said County of Hawai`i; 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 Hawai`i by Section 5 -1.3 of the County Charter, County of Hawaii (2000), as
amended; and said WILLIAM P. KENOI acknowledged said instrument to be the free act and deed of
said County of Hawaii.
Al I(III (
Not. P blic, State Hawaii
Printed ame: PA LETTE CAINCLIT. _
My commission expires: IaM¢.otS
NOTARY CERTIFICATION STATEMENT
Document Identification or Description: Amendment to the Grant of
Non - Exclusive Easement For Limited Public Access Over
Private Roadways.
Doc. Date: or 'Undated at time of notarization. 9
No. of Pages: 6 (siX) Jurisdiction: lleti Circuit
DU I I (in which notarial act is performed)
1.14 Q JUN - 2 2010
Sigiat re o tat Date of Notarization and
Certification Statement
PAULETTE CAI"ICLIT
Printed Name of Notary Mu Comniknito hpi ✓eb. �w3
6