HomeMy WebLinkAboutRES 389 Draft 01 2008-2010 JN SV OF
COUNTY OF HAWAII STATE OF HAWAII
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RESOLUTION NO. 389 10
RESOLUTION ACCEPTING THE GRANT OF PUBLIC ACCESS PEDESTRIAN
EASEMENT FROM NORTH COAST KOHALA LLC, TAX MAP KEY (3) 5 -5- 007:037
WHEREAS, North Coast Kohala LLC, a Virginia limited liability company, (hereinafter
"Grantor ") is the owner in fee simple of that certain parcel of land being Lot 301, also being Lot
305, as shown on Map 68, Land Court Application No. 1120, and being further identified as Tax
Map Key No.: (3)5 -5- 007:037 (hereinafter the "Property ");
WHEREAS, pursuant to Section B of the April 4, 2002 Settlement Agreement for Board
of Appeals No. 01- 000028 and Subdivision No. 2000 -72 of applicant Surety Kohala
Corporation, entered into by and between the County of Hawai`i and Surety Kohala Corporation,
Grantor's predecessor -in- interest, Grantor shall provide a ten -foot wide pedestrian public access
easement in favor or the County of Hawai'i across the makai boundary of the Property;
WHEREAS, final subdivision approval for Subdivision No. 7643 was approved on May
8, 2003 providing an "Undetermined ten -foot wide easement for public pedestrian access
purposes within a forty -foot wide corridor measured from top edge of cliff' and being Easement
93 for public access purposes as shown on Map 77 of Land Court Application No. 1120; and
WHEREAS, in order to assure that pedestrian public access is provided within the
Property along the shoreline, the Grantor and the County of Hawai'i agree to be bound by and to
encumber the Property by recordation of the Grant of Public Access Easement, attached hereto
as Exhibit "1," at the Bureau of Conveyances and the Land Court of the State of Hawai'i.
BE IT RESOVED BY THE COUNCIL OF THE COUNTY OF HAWAI'I, in
accordance with Article XIII, Section 13 -12 of the Hawai'i County Charter that the County of
Hawai'i accepts the Grant of Public Access Easement as described and delineated in Exhibit 1
attached hereto.
BE IT FINALLY RESOLVED that the Clerk of the County of Hawai'i is directed to
transmit copies of this Resolution to: The Honorable William P. Kenoi, Mayor of the County of
Hawai`i; Bobby Jean Leithead Todd, Director of the County of Hawai`i Planning Department;
Lincoln Ashida, Corporation Counsel for the County of Hawai`i; Amy G. Self, Deputy
Corporation Counsel for the County of Hawai`i; and North Coast Kohala LLC, at 4 E. 8 Street,
Wilmington, Delaware 19801.
Dated at Hilo , Hawai`i, this 6th day of October , 2010.
INTRODUCED BY:
d
COUNCIL MEMBER, COUNTY OF HAWAI`I
COUNTY COUNCIL ROLL CALL VOTE
County of Hawai`i AYES NOES ABS EX
Hilo, Hawai`i ENRIQUES X
FORD X
1 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 October 6, 2010
IKEDA X
NAEOLE - BEASON X
ATTEST: ONISHI X
YAGONG X
YOSHIMOTO X
8 0 1 0
Reference: C- 935/PC -95
COUNTY CLERK CHAIRPERSON & PRESIDING OFFICER RESOLUTION NO. 389 10
LAND COURT REGULAR SYSTEM
Return By Mail Pick -Up ( To:
STEVEN S.C. LIM
CARLSMITH BALL LLP
121 Waianuenue Avenue TOTAL NUMBER OF PAGES: 9
Hilo, HI 96720
TITLE OF DOCUMENT:
GRANT OF PUBLIC ACCESS EASEMENT
PARTIES TO DOCUMENT:
GRANTOR: NORTH COAST KOHALA LLC, a Virginia limited liability company,
whose mailing address is 4 E. 8th Street, Wilmington, Delaware 19801
GRANTEE: COUNTY OF HAWAII, a political subdivision of the State of Hawaii,
whose principal place of business and mailing address is 25 Aupuni
Street, Hilo, Hawaii 96720
TAX MAP KEY (3)5 -5- 007:037 (portion)
Affects TCT 744,974 4811- 6478 - 6180/10/15/09
Exhibit 1
GRANT OF PUBLIC ACCESS EASEMENT
THIS GRANT OF PUBLIC ACCESS EASEMENT is made this day of
, 2010, by and between NORTH COAST KOHALA LLC, a Virginia
limited liability company, whose mailing address is 4 E. 8th Street, Wilmington, Delaware
19801, hereinafter called "Grantor ", and the COUNTY OF HAWAII, a political subdivision
of the State of Hawaii, whose principal place of business and mailing address is 25 Aupuni
Street, Hilo, Hawaii 96720, hereinafter called "Grantee ".
WITNESSETH:
WHEREAS, Grantor is the owner in fee simple of that certain real property situated at
Hualua and Kahei, District of North Kohala, County and State of Hawaii, being Lot 301
(containing an area of 105.647 acres) under Subdivision No. 7643B, approved by the County
of Hawaii Planning Department on May 28, 2003, also being Lot 305, as shown on Map 68,
Land Court Application No. 1120, being further identified as Tax Map Key No.:
(3) 5 -5- 007:037 ( "Project ");
WHEREAS, pursuant to the provisions of Hawaii Revised Statutes Section 46 -6.5
relating to Public Access, the County of Hawaii has adopted Hawaii County Code Chapter 34
(Public Access), which provides for implementation of public access over private property in
appropriate locations to the ocean, shorelines and mountain areas by requiring dedication of
land for such public rights -of -way by fee or easement as a condition precedent to final
subdivision approval or the issuance of a building permit for a multiple- family development
where adequate public access is not already provided, including provisions requiring the
County of Hawaii to be responsible for all improvement costs, liability and maintenance
issues.
WHEREAS, in order to assure that public access is provided within the Project to and
along designated shoreline access areas, the Grantor and the Grantee hereby agree to be bound
by, and to encumber the real property identified and depicted on Exhibit B attached hereto
and incorporated by reference herein, by dual recordation of this Grant of Public Access
Easement in the Bureau of Conveyances of the State of Hawaii and filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii.
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WHEREAS, pursuant to Section B of the April 4, 2002 Settlement Agreement for Board
of Appeals No. 01 -28 and Subdivision No. 2000 -72 of applicant Surety Kohala Corporation,
entered into by and between Surety Kohala Corporation, a Hawaii corporation, Grantor's
predecessor -in- interest, and Grantee, the execution and delivery to the County of Hawaii of this
Grant of Public Access Easement shall constitute full and final compliance with all mauka -makai
and /or lateral public pedestrian and /or vehicular access requirements for the Project of Section
46 -6.5, Hawaii Revised Statutes (FIRS), Chapter 205A, FIRS, Chapter 343, HRS, Ala Loa and
Ala Kahakai, Chapters 23 (Subdivision) and 34 (Public Access), Hawaii County Code, and
Planning Department Rule 21 relating to Public Access: Usage, including but not limited to the
restrictions on use provided hereinbelow.
NOW, THEREFORE, Grantor and Grantee agree as follows:
THAT THE Grantor, for and in consideration of the sum of TEN AND NO /100
DOLLARS ($10.00) paid by Grantee, the receipt whereof is hereby acknowledged, and in further
consideration of the covenants and conditions herein contained by Grantee to be observed and
performed, does hereby bargain, sell, assign and grant unto the said Grantee, and its successors
and assigns, perpetual and nonexclusive right and easement in, upon, through, over, under and
across the Grantor's Project for lateral pedestrian public access purposes and as indicated
thereon, including without limitation, the construction, reconstruction, installation, maintenance,
operation, replacement and repair of improvements constructed for said purposes ( "Easement
Area "), as follows:
Easement 83 being 10 -feet wide within a 40 -foot wide corridor
measured from top edge of cliff, containing an area of
approximately 1.319 acres, for pedestrian public access purposes
affecting Lot 305, as shown on Map 68, Land Court Application
1120, as more particularly described in Exhibit A and depicted on
Exhibit B, attached hereto and incorporated by reference herein.
As used herein, the term "pedestrian public access" shall mean and be limited to uses
allowed by the public pedestrian access usage regulations as provided in Planning Department
Rule 21, Public Access: Usage.
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If portions of the sea cliff erode away, destroying the Public Access Easement or making
said easement hazardous, the Public Access Easement must be relocated to a safe location in the
immediate vicinity. Where the trail does not exist on the ground in the area of the desired lateral
pedestrian public access, Grantor shall have no obligation to make trails. Where there is a lateral
pedestrian public access specified near the top of the sea cliff, the easement may be relocated at
Grantor's request closer to the top of the cliff if: (1) the route in question can easily be used for
pedestrian travel without improvement and (2) the location is a safe distance from the top of the
cliff.
Nothing in this Grant of Public Access Easement shall amend, qualify or otherwise limit
the following: (1) the liability protections given to the Grantor pursuant to Hawaii Revised
Statutes Chapter 520, including without limitation the protections afforded in Section 520 -4(b),
relating to Landowners' Liability; and (2) the liability protections given to the owners or
operators of any business providing recreational activities to the public who obtain voluntary
written release waivers for their patrons pursuant to the provisions of Hawaii Revised Statutes
Section 663 -1.54 relating to Recreational Activity Liability.
AND, Grantor and Grantee hereby covenant and agree as follows:
1. The lateral pedestrian public access easement will not be officially open to the
public until this Grant of Public Access Easement has been accepted by the County of Hawaii.
The Easement Area as described hereinabove may be used by any members of the public having
the right to use such Easement Area, subject to and upon the following terms and conditions:
(a) Restrictions on Use. Lateral pedestrian public access will be open from
sunrise or 6:00 a.m., whichever is earlier, to one -half hour beyond sunset
or 6:00 p.m., whichever is later. It is intended that the pedestrian public
access be utilized for non - commercial, recreational purposes. The public
access use of the Easement Area does not include bicycles, skateboards
and /or roller skates, motor bikes, all- terrain vehicles or motorized vehicles
of any type, or equestrian uses by horse, mule or other animal, unleashed
dogs, and the lighting of fires. The Grantee shall have the right to control
or prevent access to the lateral pedestrian public access easement in the
event of a County or State declared emergency. Access for night fishing
past 6:00 p.m. shall be allowed for those individuals who are actively
engaged in night fishing activities through a permit system managed by
the Grantee pursuant to Planning Department Rule 21, and does not
include the right to overnight camping.
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(b) Maintenance and Control of the Public Access Easement. Other than the
execution of this Grant of Public Access Easement and performance of the
duties hereunder, the Grantor shall have no responsibility to maintain,
control, implement or provide lateral pedestrian public accesses upon and
through the Project. The Grantee shall be solely responsible for
maintaining, controlling, insuring and repairing the lateral pedestrian
public access easement in a good and safe condition, ordinary wear and
tear excepted.
2. The Grantor and Grantee agree that the execution and delivery to the County of
Hawaii by Grantor of this Grant of Public Access Easement shall constitute full and final
compliance with all mauka -makai and /or lateral public pedestrian and /or vehicular access
requirements for the Project of Section 46 -6.5, Hawaii Revised Statutes (HRS), Chapter 205A,
HRS, Chapter 343, HRS, Ala Loa and Ala Kahakai, Chapters 23 (Subdivision) and 34 (Public
Access), Hawaii County Code, and Planning Department Rule 21 relating to Public Access:
Usage.
3. The Grantor and Grantee further agree that the use of the lateral pedestrian public
access easement by the general public for the purposes permitted hereunder constitutes use for
"recreational purposes" within the meaning of the Hawaii Recreational Use Statute, Hawaii
Revised Statutes Chapter 520.
4. That Grantee and the members of the general public shall not use the Easement
Area for any purpose not expressly permitted herein.
5. That if at any time the premises across which the rights and easements are hereby
granted, or any part thereof, shall be condemned or taken by any governmental authority,
Grantee shall have the right to claim and recover from the condemning authority, but not from
Grantor, such compensation as is payable for the said rights and easements within the public
access easement by Grantee, all of which shall be payable to Grantee.
6. The terms "Grantor" and "Grantee" wherever used herein shall include Grantor
and Grantee and their respective heirs, devisees, personal representatives and assigns according
to the context thereof
7. This writing contains the entire agreement of the parties hereto concerning the
subject matter hereof, and this Grant of Public Access Easement supersedes all other
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agreements and understanding (whether oral or written) heretofore or contemporaneously
herewith made by the parties.
IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day
and year first above written.
COUNTY OF HAWAII, a municipal NORTH COAST KOHALA LLC,
corporation a Virginia limited liability company
P . N
I� P. � �I Be
WILLIAM � LETTA B' DIN -BELL
Its: Mayor Its Designated Member
AGREED AND ACCEPTED:
7
mg D "rector
County of Hawaii
Date: r„t
/ 7
Approved as to Form and Legality
By // "`
Deputy Corporation Cou sel
Date: 34 &be'
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STATE OF HAWAII )
SS.
COUNTY OF HAWAII )
On August 27, 2010 , before me personally appeared WILLIAM
P. KENOI, to me personally known, who, being by me duly sworn, did say that he is the Mayor
of the County of Hawai`i, a municipal corporation of the State of Hawai` i, that the seal affixed to
the foregoing instrument is the corporate seal of said County of Hawai`i, the foregoing
instrument was signed and sealed on behalf of the County of Hawai`i by authority given to said
Mayor of the County of Hawai`i by Sections 5 -1.3 and 13 -13 of the County Charter, County of
Hawai`i (2000), as amended, and said WILLIAM P. KENOI acknowledged said instrument to be
the free act and deed of said County of Hawaii.
-4-el- -— it A,
Notary Public, State of Hawaii
Printed Name: Guillerma G. Sumera
My commission expires: 9/22/13
NOTARY CERTIFICATION STATEMENT
Document Identification or Description: Grant of Public Access
Easement = North Coast Kohala, LLC
Doc. Date: _ or Undated at time of notarization.
No. of Pages: 8 + exhibit Jurisdiction: Third Circuit
. . w•.E. AUG 2 7 2010
Signature of Notary Date of Notarization and
Certification Statement
Guillerma G. Sumera
Printed Name ofNotary
STATE OF HAWAII )
) ss.
COUNTY OF HAWAII )
The attached document: Grant of Public Access Easement, dated March 16,
2009, which consists of TEN (10) pages (including this page), was executed by ALLETTA
BREDIN -BELL on this 16` day of March, 2009 in the Third Judicial Circuit of the State of
Hawaii, to me personally known to be the person, who personally appeared before me and
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 s ch instrument in such capacity.
�� �, GA(( i i,
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otary Signat e] 3 \. PUB� ,..z
Printed Name: Wallace H. Gallup, Jr.
My commission expires: January 9, 2012
EXHIBIT A
EASEMENT 83
(10 -ft. wide within a 40 -ft. wide corridor)
Easement 83, containing an area of approximately 1.319 acres, as shown on Map 68, Land
Court Application No. 1120, for public pedestrian access purposes, as set out in Land Court
Order No. 157293.
END OF EXHIBIT A •
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