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HomeMy WebLinkAboutCOM 2482 1962 3''41, CAILSMITH, CARLSMITH,WICHMAN AND CASEY L._J _i�[u. •. Os.tri ATTORNEYS AT LAW - •• C.WENDELL CARLSMITH ^`�" MERRILL L.CARLSMITH H I LO, HAWAII P O.BOX 686 HILO,HAWAII JAMES H.CASE CHARLES R.WICHMAN /1' P.O.BOX 656 DONN W.CARLSMITH May 1T, 1962 - HONOLULU,HAWAII KEITH J.STEIN ER H WILLIAM BURGESS ROBERT E.BETHEA JAMES W.BOYLE TOM L.PETERSON PETER A.DONAHOE CHAUNCEY G.GRISWOLD The Honorable Thomas K. Cook and Members of the Board of Supervisors of the County of Hawaii Hilo, Hawaii Gentlemen: We represent Mark Twain Estates, Inc . , which previously filed with you a petition for an improvement district at Kau, Hawaii, based upon Section 146-139 of the Revised Laws of Hawaii 1955 (generally known as a 100% improvement district) . Mark Twain Estates, Inc . is not now the owner of 100% of the land covered by said petition and, on behalf of Mark Twain Estates, Inc . , we hereby with- draw our previous petition. As we mentioned to you at the meeting of the Board of Supervisors on April 4, 1962, we have prepared a petition for an improvement district at Kau, Hawaii, within the provisions of Section 146-138 of the Revised Laws of Hawaii 1955 (generally known as a 60% improvement district) . We are enclosing herewith the original executed copy of this petition. We would appreciate it if, on behalf of the company, we could explain to you the material contained within this petition and answer any questions you may have . Very truly yours, CARLSMITH, CARLSMITH, WICHMAN AND CASE By K.3— — • :...�_ James H. Case JHC:p Enclosure - �.�c_. f'ClIL 'f-f-�, I.S < PL�67 $ rl(,, ."r"'- MAY Ifs f96 May 18, 1962 C-2482 Mr. James H. Case Carlemith, Garlsmith, Wichman & Case Attorneys-at-Law. Hilo, Hawaii Dear 1r. Case Your letter of May 14, 1962, submitting a revised petition for an improvement district at Kau and withdrawing the petition filed previously was considered by the Board of Supervisors at its May 16 meeting. The Board referred your letter to its Committee on Public Works and to the County Attorney. The Attorney has been requested to draft the required Resolutian by the ne;t meet- ing if he finds it legal. Very truly yours, (Mrs.) Margaret M. Kaaua COUNTY CLERK ew:mh cc County Attorney Asstt to Board Committees qa,-A MAY 71:1,7"-r OFFICE OF TIjE COUNTY C" ERK COUNTY OF HAWAII HILO, HAWAII MEMORANDUM From: COUNTY CLERK, MARGARET M. KAAUA To : Public Works Department sumo, Resolution 546 REMARKS: I am enclosing for your files and information, a copy of Resolution No. 546 relating to the proposed Waiohinu Improvement District, Kau, Hawaii. omoomeammalx Memo-also sent to: Attorney James Case Memo forwarded : June 15, 1962 Planning & Traffic Commission Board of Water Supply Signature d=a<igo2 M E M O R A N D U M (7) TO: Mark Twain Estates, Inc. FROM: Carlsmith, Carlsmith, Wichman and Case DATE: May 1, 1962 RE: Proposed Improvement District SUBJECT: Procedure by Owners of 60% of Frontage or Area to Obtain an Improvement District in the County of Hawaii 1 . Filing of Petition. A petition is filed with with the Board of Supervisors by the owners in fee simple (i) of not less than 60% of the frontage upon any street, alley, or highway designated by them, or (ii) of not less than 60% of the area of land designated by them as a proposed improvement district. §146-138. Signatures must be duly acknowledged. Id. The petition must request the construction of special improvements, which are defined as any one or more or any combination of any of the following: (a) The establishment, opening, extension, widening, or altering of any street, alley, or other highway, or sidewalk; (b) The grading, paving, curbing, macadamizing, or otherwise improving of the whole or any part of any existing public street, alley, or other highway or sidewalk; (c) The construction of a storm drainage system; (d) The construction of any sanitary sewerage system; (e) The construction of a street lighting system; (f) The construction of a water system; (g) To otherwise improve any of the foregoing to an extent exceeding maintenance or repair thereof. §146-130 (d) (1)-(7) . 1 . • • . 0 2. Contents of Petition; Certain Costs. Besides the acknowledgment of signatures and the request for the construction of special improvements, the petition must include the surveys, maps, plans, and other preliminary data and estimates mentioned in section 146-136 (relating to initial procedure by board) in the case of a proceeding initiated by the board. This would include: (a) Preliminary data concerning the special improvement proposed to be opened, constructed, or improved; (b) The general character and extent of any improvement to be proposed; (c) Whether such improvement should be proposed on a frontage or an area basis; (d) Whether any new land will be necessary to be acquired, and the estimated cost thereof and the proportion which should be borne by the county; (e) The materials recommended to meet the conditions of the improvement; (f) The boundaries of the improvement to be proposed and any sub-districts or zones therein as to which different portions of the cost should be charged; (g) The estimated cost of the improvement; (h) The portions of the cost to be borne by the county; (i) The protions of the cost to be specifically assessed against the lands specially benefited with the maximum unit of assessment to be made against the property to be assessed according to the method of assessments tc bn propose' (j) If the proposed improvement includes the construction or improvement of a water system or the laying or installation of conduits, pipes, hydrants, or any appliance for supply or distributing a water supply--then preliminary plans for such proposed water system as will enable the board of water supply to make its plans and estimates for the proposed water system; and 2. (k) All necessary preliminary surveys, maps, plans, drawings, and other data, details, and specifications for the improvements and any other matters or details intended to apply thereto . §146-136. The cost of the preliminary surveys, maps, and other data, if not in excess of the estimate therefor stated in the petition, shall be deemed part of the cost of the improvement . 8146-138. Although section 146-135 provides that certain costs are to be borne by the county, such as the entire cost of engineering, incidentals, and inspection, this section does not apply where improvements are initiated under section 146-138 (60% petitions) or under section 146-139 (100% petitions), with certain exceptions that do not appear relevant to the petition of Mark Twain Estates. These exceptions relate to (1 ) the cost of acquiring land necessary for a main or general thoroughfare (as defined therein) in excess of 60 feet in width, (2) the cost of pavement in excess of 20 feet in width for a main or general thoroughfare, and (3) the cost of widening any street or highway where the original construction cost was paid by assessment. §146-135. There is also a special provision relating to action which, in the board' s discretion, may be taken to protect the county from claims for damages from surface waters. Id. If a proposed special improvement includes the construction or improvement of a water system, the board of water supply may, but need not, assume and pay out of its funds available for such purpose, the cost of engineering, incidentals, and inspection, and up to (but not in excess of) one-third of the total cost of the construction or improvement of such water system. 8146-141 . 3. See also section 146-132, which limits the costs assessable to property owners for the construction of sanitary sewerage systems, but which provides that the total cost thereof shall be assessed against the land specially benefited where such construction is initiated under section 146-138 (60% petitions) or under section 146-139 (100% petitions) . 3. Degree of Detail of Preliminary Data. Section 146-136 requires, in general, "all necessary preliminary surveys, maps, plans, drawings, and other data, details and specifications for the improvements and any other matters or details intended to apply thereto. " Thus the emphasis is on the word "preliminary. " It is not until the board adopts the resolution creating the improvement district that the chief engineer is directed to prepare final maps, details, plans, and specifications . 9146-140. And these latter resolutions are not adopted until after a public hearing has been held, at which, as will be discussed below, the proposed improve- ment district may be defeated by 55% or more of the property owners affected. 9146-137. Therefore, it would be contrary to the statutes and unreasonable to require the preliminary data filed with the petition to be in final form, at a great cost, as is apparently the policy of the City Council of the City and County of Honolulu. It is true, however, that such preliminary data must be in sufficient detail to form a reasonable basis for the estimates (not final figures or details) contained in the petition and to give the property owners a clear understanding of what is proposed and how they are to be affected, so that 4. they may intelligently represent themselves at the public hearing on the proposed improvement district . It is also true that as a matter of policy, the board might require greater detail (but still short of final plans) in the case of a petition by owners of 100% of the frontage or area included, in order to better ascertain whether or not the mandatory standard of section 146-139 has been met . 4. Initial Procedure by Board. Upon the filing of the petition, the board then proceeds in the same manner as though the plan for such improvements had been initiated on its own motion. §146-138. If the proposed improvement includes the construction or improvement of a water system or the laying or installation of conduits, pipes, hydrants, or any appliance for supplying or distributing a water supply, the chief engineer must obtain from the board of water supply preliminary plans and estimates for such proposed water system and he must furnish such board with such preliminary plans of the proposed improvement as will enable the board of water supply to make its plans and estimates for the proposed water system. §146-136. Presumably the petition would include such preliminary plans as are envisioned by the statute as being furnished to the board of water supply. Likewise, it would appear prefectly proper if the board of water supply merely approved the preliminary plans and estimates furnished it if such plans and estimates conformed with what the board of water supply would have otherwise supplied to the chief engineer if the proposed improvements had been initiated by the board of supervisors. 5. 5. Resolution Proposing Improvements . The board of supervisors cannot act upon the petition until one week has elapsed from the date of the filing of the petition. 8146-136. Thereafter the board, by resolution requiring only one reading, proposes the making of such improvements . 8146-136. This resolution must specify: (a) The streets, storm drainage, sanitary system, water system, or street lighting system, or combination thereof to be opened, constructed, or improved; (b) The area, owner, so far as known, and general description and location of new land to be required, if any; (c) The materials proposed to be used; (d) The proposed method of assessment including the minimum number of installment pay- ments to be proposed; (e) The general boundaries of the district or frontage, sub-districts, and zones to be assessed; (f) The maximum estimated unit of assessment; (g) Adopts the plans and estimates furnisncd by the board of water supply, by referring to them and incorporating them by reference in the resolution; (h) Refers to and incorporates by reference such surveys, plans, maps, and other data included in the petition as are approved by the board, subject to the limitation in section 146-138 on the board ' s powers; and (i ) Fixes a date of public hearing upon the proposed improvement, which date shall be not less than 15 days after the first publication of notice thereof in a newspaper of general circulation in the county. §146-136. The board does not have the power to abandon the proceedings or make any change or modification of the plans or the details or specifications for the proposed improvements without the written and duly acknowledged consent 6. of the owners of not less than 60% of the frontage or area of the land to be assessed. 8146-138. However, the board may decline to acquiesce in or may modify any part of the plan which contemplates the payment by the county (1 ) of any part of the cost of acquiring new land or (2) of any part of the cost of improving any main or general thorough- fare, but in such event, if the owners of not less than 60% of the frontage or property to be assessed acquiesce in writing in the change or modification, the board is bound to proceed with the plan as so modified. Id. Also, the board does not have the power to modify or change the plans and estimates furnished by the board of water supply without the consent of the latter board. 8146-140. 6. Notice and Posting of Public Hearing; Affidavits . After the adoption of such resolution, the county clerk causes a notice of public hearing to be published twice a week for two successive weeks (four publications in all ) in a newspaper of general circulation in the county, (a) Giving notice generally, to all owners, lessees, and occupants of land proposed to be assessed or acquired and to all others interested of the general details of the proposed improvements as adopted by the board, and (b) Stating the time and place of public hearing and where the petition, resolutions, reports, and other data may be seen and examined prior to the hearing. §146-136. Like notices are to be posted conspicuously at least 10 days prior to the hearing approximately every 250 feet along the highway or highways proposed to be opened or improved. Id. In case of a storm drainage, sanitary sewerage, water, or street lighting system, like notices 7. shall be posted conspicuously at various places within the area or along the frontage to be assessed. Id. Affidavits of publication both in the newspaper and along the route of improvement respectively shall be filed with the board at the public hearing. Id. 7. Public Hearing--Protests and Suggestions . At the hearing, any owner of property proposed to be assessed and, in some cases, lessees of the same, may protest or make suggestions about the proposed improvement . 9146-137. For protest purposes only, any lessee of property to be assessed, who by the express terms of his lease must pay the kind of assessments contemplated under this Part, is subrogated to all rights of such owner to protest by filing with the board prior to or at the hearing a certified copy of his lease, together with a citation of the book and page of the public record of the same if it is recorded. Id. But any lessor of such lessee, or any owner of the property to be assessed, may, at any time before the closing of the public hearing, make void the protest or rights of protest of any lessee of the property on considera- tion of filing with the board (1 ) a duly acknowledged waiver of the stipulation in the lease which required the lessee to pay the special assessment and (2) a written undertaking by the lessor or owner to pay the special assessment to be made under the proposed amendment. Id. The county also has a right of protest, as though the county were the private owner, where public land or any land exempted from assessments is included in a proposed improvement district if the county must pay part of the cost thereof in accordance with section 146-134. 8. • Any such protest,. object ion, - or suggestion as to the proposed _improvement must be filed in writing, with the board, prior to- or at the hearing, stating briefly the reason therefor_, or the same may be presented in person orally at the hearing E146-l38. Id, If-- (a) 55% of the property owners and subrogated lessees of the total frontage or area to be assessed for- such. improvements, (b) At the hearing or prior thereto, file with the --board written protests, duly acknowledged by such- owners _and. lessees, (c) Against the making of the improvements or against any part of the plan therefor, then the same shall not be made contrary to the protest . Id. If the protest is against the making of any improvement (as opposed to being against only part of the plan therefor) , the same shall not be made, and the proceedings cannot be renewed within six months from the date of closing the public hearing, unless each and every owner or. subrogated lessee protesting withdraws his protest. Id. 9. 8. Determination by Board. After the hearing, the board then considers any protests, objections, or suggestions, which may have been made or filed and whether sufficient valid protests have been filed to compel it to abandon any part or all of the proposed improvement . 5146-140, The board cannot abandon the proceedings or make any change or modification of the plans or the details or specifications for the proposed improvements without the written and duly acknowledged consent of the owners of not less than 60% of the frontage or area of the land to be assessed, where the county is not required (1) to pay any part of the cost of acquiring new land or (2) to pay for any part of the cost of improving a main or general thoroughfare. s146-138; see g5 supra. However, these limitations are qualified by section 146-137 (relating to the public hearing) which was discussed in section 7 hereof. If the board still has jurisdiction to proceed, it must then determine whether or not the proposed improvement shall be (1) made as proposed or (2) made with modifications , sl46-140. If the board decides to make modifications, it can do so, subject to the limitations above, without again giving notice of a hearing as provided in section 146-136 if the modifications or changes : (a) Do not substantially reduce the frontage or area to be assessed; (b) Do not increase the maximum estimated unit of assessment; (c) Do not lessen the unit cost per front foot or square foot ; and (d) Do not materially alter the general character or plan so advertised. §146-140. But the board cannot make any modification or change in the plans and estimates furnished by the board of water supply without the consent of the latter. Id . 10. 9. Resolution Creating District. If no further advertisement and hearing are required and if the board determines to proceed with the improvements, it then adopts a resolution, requiring only one reading, which creates, defines, and establishes the extent of the frontage improve- ment or the improvement district to be assessed, as the case may be, and which : (a) Defines the kind, extent, and general details of the proposed improvements ; (b) Describes each parcel of land to be acquired, if any; (c ) Declares the part or portion of the cost of any improvement which is to be borne by the county; (d) Declares the method of assessment and the kinds of materials to be used; (e) Directs the chief engineer to prepare a corrected map of the highway or highways to be improved showing the abutting lands, or of the improvement district showing the highways to be improved or the special improvements to be con- structed or improved, as the case may be, and showing the exact location of the improvements, together with final details, plans and specifi- cations for the work--all in such form as will readily permit and encourage genuine competition between contractors insofar as the materials specified will permit of such competition; and (f) If a water system is included, reauests the board of water supply to furnish final detail plans and specifications for such water system, including plans and specifications for adequate and appropriate conduits, pipes, hydrants, and other appurtenances (including reservoirs and booster pumps ) necessary for supplying and distributing the water supply for such proposed improvement; and directs the chief engineer to furnish the board of water supply with such copies of the final surveys, maps, and plans covering the proposed improvements (other than the water system) , as may be necessary to enable the board of water supply to prepare the final plans and specifications for such water system. 8146-140. If a water system is included, the board of water supply must furnish such final plans and specifications when so requested, but the board of water supply may refuse 11 . to furnish such plans and specifications where funds for the amount the county is obliged to pay towards the contract price have not been included in the county budget for such year. Id. 10. Resolution Forming Basis for Bids .. Upon the completion of the items mentioned in section 9 above, the board then by resolution, requiring only one reading, approves and adopts the same as the basis for the calling of bids and the awarding of a contract or contracts for the work. 8146-140. If a water system is included, the final plans and specifications furnished by the board of water supply are incorporated in such resolution and are used as the basis for the calling of bids and awarding of a contract or contracts for such work. Id. 11. Acquisition of Land by Dedication or Otherwise. In case the improvements determined upon require the acquisition of any new land, the board must acquire the same before final award of the contract, either by deed or other voluntary con- veyance from the owners thereof, or at its option, by con- demnation proceedings. B146-140. If the board elects to bring condemnation proceedings, the final award of the contract may be made after the filing of the petition in such proceedings. Id. If the cost of acquiring such land exceeds the estimate therefor, the board may provide for the excess cost by general appropriation. Id. 12. Contract, Bids, Performance Bonds . All improvements made under Part IX of Chapter 146 must be constructed under contract let to the lowest responsible and reliable bidder, after public advertisement by the board in some newspaper of general circulation in the county twice a week for not less than two weeks, except as provided in 12. • sections 9-21 to 9-24 (relating to public works and contracts) and Part III of Chapter 146 (relating to Hawaii bureau of purchases and supplies ) . Section 146-142 provides that except as aforesaid : (a) The Board may either let the work as an entire contract, or in its discretion, mace one or more contracts separately for the different kinds of work to be performed, or for the improvement of different highways or special improvements or parts of highways or special improvements to be improved or constructed under one proceeding; (b) No bid shall be considered unless accompanied by a certified check, or its equivalent payable to the county, for not less than 5% of the amount of the bid, which check, or its equivalent, shall be forfeited to the county, unless the successful bidder signs the contract and furnishes an approved bond within the time specified by the board; (c) No bid in excess of the estimated costs shall be accepted by the board without the written and acknowledged approval of the owners of at least 60% of the frontage or area to be assessed, as the case may be; (d ) The board shall have the right to reject any and all bids and in such case to readvertise for tenders if it deems advisable to do so; (e) No contract shall be made without a bond to the county for the faithful performance of such contract in an amount not less than 50% of the contract price, with at least two sufficient sureties, each of whom shall be worth not less than the full amount of the bond over and above all property exempt from execution, and who shall, upon the written demand of the board or of any owner of property subject to assessment, be required to justify thereon on an examination under oath before the board; provided that, instead of personal sureties, a duly qualified surety company may be substituted as provided by law; (f) If upon such examination, any surety is held insufficient, a new bond with sufficient surety or sureties shall be filed by the successful bidder within the time specified and allowed by the board, or the contract to him and the deposit shall be forfeited; (g) Upon the contract being signed and a suffi- cient bond furnished as aforesaid, the deposit made with the bid shall be returned to the contractor; and (h) Any other method of letting contracts shall be illegal and void. 13. The board may, notwithstanding any other provision of the law to the contrary, let the contract without having the total amount of the contract price available . X146-142. But as a matter of policy in Honolulu, after letting the contract, the City Council does not give the contractor notice to proceed with construction until after the improve- ment district bonds are issued or, if no bonds are to be issued, until after all assessment moneys are collected. Although this practice is not spel).ed out in the statutes, it would appear to be sound and consistent with the spirit of the law. If the county is obliged to pay a portion of the cost of the contract price, special rules are set forth in section 146-142 to cover this situation. 13. Assessment Hearing. After letting the contract, the board must then cause the chief engineer to prepare a corrected map similar to that required under section 146-136 (see section 2 above ) . s 146-143 . He must also prepare a preliminary assessment roll and description of properties to be assessed showing in detail : (a) The proportionate amount per front foot and the exterior boundaries of the lands subject to the assessment, if the assessment is to be made on such basis, or the proportionate amount per square foot, if the assessment is to be made according to area, proposed to be assessed against the property in the benefited district or in the several sub-districts or zones thereof, if any; and (b) A list of all known owners, lessees, and occupants of the land fronting upon such highway or highways or situate within the improvement district. Id. The board then gives notice by publication and post- ing in the same manner as that provided in section 146-136 (see section 6 above ) , which notice must contain the following: 14. • (1) The total amount of the cost of the improvement based upon the bid of the lowest responsible and reliable bidder; (2) The maximum share per front foot or per square foot, as the case may be, proposed to be charged to the benefited district or sub-districts or zones, if any; (3) That the corrected map, preliminary assessment roll and description of properties may be seen and examined at the office of the chief engineer during business hours at any time prior to and including the date fixed for hearing; and (4) Fix a date and place when a public hear- ing will be had and the board will sit as a board of equalization to receive complaints or objections respecting the total amounts of the proposed several assessments, which date shall not be less than 10 days nor more than 3 weeks after the date of the first newspaper publication of the notice. 146-143. The board then conducts a hearing accordingly. An affidavit of publication and posting is filed at the hearing. For a special rule involving an owner, part of whose land was previously condemned for such proposed improvement, see section 146-140 (third paragraph) . For special rules pertaining to public land or land exempted from such assessments which is included in a proposed improvement district, see section 146-134. 14. Assessment Ordinance . After the hearing, the board must forthwith : (a) Proceed to make such modifications or changes as to them may seem equitable or just, or shall confirm the first proposed assessment; and (b) Upon reaching a final decision, shall by ordinance fix the portions of the cost to be assessed against the benefited properties and against the owners thereof respectively; and (c) Such ordinance shall incorporate by reference the assessment roll as approved by the board. § 146-144. After the final enactment of such ordinance, the amounts of the several assessments so listed, advertised, 15. and incorporated and not previously objected to, are con- clusively presumed to be just and equitable and not in excess of the special benefits accruing or to accrue by reason of the improvement to the specific property assessed. Id. 15. Notice and Collection of Assessments. The county treasurer then (1) posts notice of assessment upon the land assessed and (2) notifies the several owners, lessees, or occupants, respectively, by registered letter with return receipt requested, of the several amounts assessed on the respective properties and of the date when such assessments are payable. s 146-145 . He must also collect such assessments and set aside all moneys so collected in a special fund or funds for the frontage improvement or improvement district, as the case May be. Id. ; see also s 146-155 (relating to special funds for payment of bonds and certain other purposes) . 16. When Assessments Payable. Such assessments are due and payable within 30 days after the date of the last publication of the assessment ordinance. § 146-146. But any assessments may, at the election of the owner of the land assessed, be paid in installments with interest. Id. Failure to pay the whole of any assessment within such 30-day period is conclusively considered and held an election on the part of all persons interested in such assessments, whether under disability or otherwise, to pay in installments . Id. All persons so electing to pay in installments are conclusively considered to have consented to the improvement, and such election is conclusively considered and held as a waiver of any and all right to question (1) all power or 16. jurisdiction of the county to make the improvement, (2) the regularity or the sufficiency of the proceedings, or (3) the validity or correctness of the assessment. Id. 17. When Installments Payable . In case of an election to pay any assessment in installments, the follow- ing rules govern: (a) The assessment shall be payable in not less than 5 nor more than 20 equal annual installments ; (b) Each such annual installment may, in turn, be made payable in 12 equal monthly installments as hereinafter provided; (c) Interest in all cases shall be paid on the unpaid principal, payable annually at a rate not exceeding 6% per annum; and (d) The board determines (1) the number of such annual installments, (2) the period of payment, and (3) the rate of interest; provided that after the annual installments are determined and fixed if it appears to be of advantage to the assessee, the board may permit tope county treasurer to accept payments in monthly installments as hereinabove provided. g 146-148. In Honolulu, the policy is to require the first in- stallment to be paid within such 30-day period by the owners, even though bonds are going to be issued. It is our opinion, however, that such policy is not required by the statutes and need not be adopted by the County of Hawaii. See pp. 19-21 of our Memorandum dated March 26, 1962, to Mark Twain Estates, Inc. 18. Improvement Bonds . In the event of an election to pay all or any part of any such special assessment in in- stallments, the county may (but need not) advance, out of any funds available in the general fund or the permanent improvement fund, (1) the amount required for immediate use to pay the contract price of the improvement or (2) the in- stallments thereof from time to time as they fall due. s146-154. The amounts so necessary shall be secured, and 17. repaid if advances have been made, by the issuance of sufficient district improvement bonds of the county to raise such required amount or amounts. Id. Such bonds shall : (a) Be in such form as may be prescribed by the board; (b) Bear the name of the benefited or improved district; (c) Be payable to bearer in a sufficient period of years to cover the outstanding installment payments; (d) Be subject to call but not prior to the second insterest date thereof as provided in section 146-158 (relating to payment before maturity) ; (e ) As to each issue, bear serial numbers; (f) Be of such denomination, not exceeding $1,000 each, as may be determined by the board; (g) Bear interest at the rate of not more than 6% per annum, payable semi-annually, as may be determined by the board; (h) Be executed by the county treasurer and issued pursuant to and under the authority and requirements of resolutions of the board; (i) Be countersigned by the chairman of the board and attested by the county clerk and by the seal of county; and (j ) Be payable only out of the moneys collected on account of assessments made for the improvement for which they are issued and the county shall not otherwise guarantee pay- ment of any bonds so issued; provided, that interest payments may be advanced by the board out of any moneys available in the improvement district revolving fund. B 146-154. Interest coupons must bear a lithographed or engraved facsimile of the signature of the treasurer. Id. He must preserve a record of the bonds in a suitable book kept for that purpose. Id. Principal and interest of the bonds are to be payable at the county treasurer ' s office and may also be made payable at the office of any bank or fiduciary company in such other 18. places as may be determined by the board. § 146-156. In all cases, the bonds and coupons must recite the places of pay- ment. Id. In case any bonds are made payable elsewhere than in Hilo, Hawaii, the county treasurer must remit the funds necessary to pay the interest and principal when due, of any such bonds, with exchange, to the institution so designated, after first assuring himself that such institution is then solvent. Id. 19. Use or Sale of Bonds . Such bonds may be used by the board at par at the time of the final acceptance of the contract to pay wholly or in part the contract price of any improvement so made. § 146-157. If the bonds are not so used, they are then sold to the highest bidder or bidders, after public advertisement for tenders for at least once each week for not less than two successive weeks in a suitable newspaper of general circulation in the county, and the sale proceeds are then applied to pay off the contract price. Id. If only part of the issue so advertised is bid for, the board may then authorize the treasurer, by resolution requiring only one reading, to sell the whole or any part of the remainder of such issue at the highest bid so received to any person at private sale . Id. In the event no purchaser is found, the county may be the purchaser of any such bonds, using any funds available and unspent. Id. In Honolulu, the bonds are seldom used to pay off the contractor. But if the board did intend to so use the bonds, it would appear only fair to notify the contractors of this intent before they bid for the contract. Then the contractors could make provision in their bids for a bond discount if they believed they could only sell the bonds at a discount. 19. , e 20. Notice to Proceed. Upon selling the bonds, the board then gives the contractor notice to proceed on the contract, if it has adopted this procedure as a matter of policy. See 0 12 above. 2.1. If Water System Included. If the proposed special improvement includes the construction or improvement system as defined in section 146-140, the board of water supply must maintain an inspector over the work to see that the plans and specifications which it has furnished have been complied with. § 146-141. After the work has been completed and accepted, the water system, pipes, conduits, hydrants, and other appurtenances for supplying or distri- buting water so installed then become a part of the board of water supply ' s system and shall, at all times thereafter, be used, operated, and maintained by it as a part of its system. Id. 22. Statute of Limitations and Other Remedial Provisions . For a complete discussion of these, see pp. 6-8 of our Memorandum dated March 26, 1962, to Mark Twain Estates, Inc . 23. Miscellaneous Provisions. There are other miscellaneous provisions of Part IX of Chapter 146 which relate to various aspects of improvement districts in the County of Hawaii but which have not been discussed in this Memorandum. Instead, this Memorandum has been confined primarily to the essential statutory steps, procedures, and rules--from the filing of the petition to the issuance of bonds--to obtain an improvement district by petition of owners of 60% of the frontage or area concerned . CARLSMITH, CARLSMITH, WICHMAN AND CASE Byr �-. �.,�-� r- \_/James H. Case 20, - BEFORE THE BOARD OF SUPERVISORS OF THE COUNTY OF HAWAII STATE OF HAWAII IN THE MATTER OF IMPROVEMENT PROCEEDINGS FOR IMPROVEMENT DISTRICT NO. / KAU, COUNTY OF HAWAII, HAWAII The undersigned property owner respectfully petitions the Board of Supervisors to create "IMPROVEMENT DISTRICT NO. / , KAU, HAWAII" for improvements consisting of new paved streets, a storm drainage system, and a water system, and all appurtenant and incidental work; all pursuant to the provisions of Section 146-138 of the Revised Laws of Hawaii, 1955, and as hereinafter more fully set forth, and in that behalf, your petitioner shows and pro- poses as follows, to-wit; I. OWNERSHIP That your petitioner is the owner of not less than sixty percent (60%) of the entire area within the proposed Improvement District. II. EXTENT AND BOUNDARIES OF PROPOSED IMPROVEMENT DISTRICT That the Improvement District shall include all that area within the boun- daries described in EXHIBIT I and shown on EXHIBIT II, attached hereto, and hereby made a part hereof; excepting from assessment therefrom, the area of streets, a portion of the area of the golf course (Lots "B" and "C"), the area for commercial development (Lot "F") and the area not presently subdivided for resi- dential lots (Lots "G" and "H") but shown on the approved master plan as future subdivisions and all as shown on EXHIBIT II. More specifically, the area to be assessed is the area of the lots within the improvement district having frontage on the streets to be improved except that the area of the golf course (Lots "B" and "C") to be assessed shall be the area fronting streets to a depth equal to that of adjacent residential lots. III. CHARACTER OF IMPROVEMENTS AND MATERIAL It is proposed to improve the area by the construction of streets including street grading, base course and pavement, installing necessary storm drainage facilities, the installation of a water system to serve the area, and all appurtenant and incidental work required. The improvements to be incorporated are shown in EXHIBIT IV, attached hereto, which exhibit is hereby made a part hereof. Preliminary specifications for the proposed improvements are given in EXHIBIT III, attached hereto, which exhibit is hereby made a part hereof. • IV. METHOD OF ASSESSMENT It is proposed that the lots or parcels subject to assessment within the Improvement District bear, on an area basis, one hundred percent (100%) of the entire cost of the general improvements including the construction of paved streets, a storm drainage system, the installation of a water system, and the cost of engi- neering, inspection, incidentals, advertising and the sale of bonds. V. PAYMENT OF ASSESSMENTS It is proposed to permit the owner of the property subject to assessment to pay said assessment in one (1) or twenty (20) equal annual installments with interest on the deferred payments at the rate of six percent (6%). VI. CONTRIBUTIONS BY THE COUNTY AND THE BOARD OF WATER SUPPLY No contribution by the County of Hawaii or the Board of Water Supply to the cost of the improvements proposed in this Petition is required. VII. ESTIMATED PROJECT COSTS The total estimate of the cost of the improvements, unit rate of assess- ment, and quantities of work for all items of improvement are as follows, to-wit; A. The detailed estimate of the cost of this project is given in EXHIBIT V, attached hereto and hereby made a part hereof. B. The following is a summary of the cost of the improvements and the maximum rate of assessment. 1 . The maximum estimated total cost of the construction of the improvements, including off-site work, is $1, 145, 000 2. The maximum estimated total cost of engineering, incidentals, inspection, advertising, and sale of bonds is $ 335, 100 3. The maximum estimated total cost of all improvements, including the off-site work, engineering, incidentals, inspec- tion, advertising, and sale of bonds is $1, 480, 100 4. The total net area of property subject to assessment on an area basis for the cost of the general improvements is 12, 700, 019 sq. ft. 5. The maximum rate to be assessed per square foot on the assessable area for the general improvements is $ 0. 11654/sq.ft. - 2 - VIII. ENGINEERING, SURVEYING AND OTHER COSTS The cost of engineering, surveys, maps, drawings and other items requi- site to this Petition and these proceedings is $110, 894. 00, and is included in the cost estimate for engineering, advertising, inspection and incidentals, which item ap- pears hereinbefore as a part of the total cost of the improvements. The petitioner asks that said cost be made a part of the total cost of the improvements, and that since said cost was, or will be, advanced prior to the sale of bonds by the Mark Twain Estates, Inc. , the petitioner asks that it be reimbursed for the said costs when funds become available from the proceeds of the sale of bonds sold for this improvement district. The cost of engineering, surveying, supervision, inspection, sale of bonds and other items requisite to the completion of the installation of the improve- ments is $224, 206. 00, and is included in the cost estimate for engineering, adver- tising, inspection and incidentals, which item appears hereinbefore as a part of the estimated total cost of the improvements. The petitioner asks that said cost be made a part of the total cost of the improvements and be paid out of the funds made available from the proceeds of the sale of bonds sold for this improvement district. IX. STREET RIGHTS-OF-WAY The parcels required for street rights-of-way are shown in EXHIBIT II, and will be dedicated to the County of Hawaii at no cost to the County of Hawaii. X. PETITION WHEREAS, the undersigned Petitioner respectfully petitions the Honor- able Chairman and Board of Supervisors to acquiesce to the plan proposed above, which contemplates no contribution by the County of Hawaii or the Board of Water Supply to the cost of the Improvement District to be created under this Petition. AND WHEREAS, the undersigned respectfully petitions that, after due proceedings have been had as required by law, the improvements then be installed by the County of Hawaii under provisions of the Improvement District Statutes. MARK TWAIN ESTATES, INC. BY: 7_7(714"7,i; (-(/--)Z:' /7 Its President B Y �C��"7` /r r- Its Secretary-treasurer - 3 - STATE OF CALIFORNIA COUNTY OF SAN MATEO On this /Vat day of ��Q,. , 1962, before me personally appeared WILLIAM C. CARTER and WILLIAM BRITLAND, to me known, who, being by me duly sworn, did say that they are the President and Secretary-Treasurer, respectively, of MARK TWAIN ESTATES, INC. , a California corporation, and that said instrument was signed in behalf of said corporation by authority of its Board of Directors, and said WILLIAM C. CARTER and WILLIAM BRITLAND severally acknowledged said instrument to be the free act and deed of said corporation. Notary Public, (Louise Goodman) My Commission expires: Apr. 3, 1964 INDEX OF EXHIBITS EXHIBIT I Description of the Boundary of the Improvement District. EXHIBIT II Map Showing Improvement District Boundaries, Approved Subdivision and Areas to be Assessed. EXHIBIT III Preliminary Specifications for the Improvements to be Installed. EXHIBIT IV Map Showing Improvements to be Installed. EXHIBIT V Estimate of Cost of the Improvements to be Installed. aa EXHIBIT I PRORDSLD 1: ;PROVEDENT DISTRICT MAuIK 1dr,IN ESTATES 2ND UNIT KAU, HAUAII Tract of Land Comprising (1) Portion of Grant 2882 to L. A. ;,:acomber (2) Portion of Grant 3635 to Kealohaai (3) Portion of Grant 1941 to Kekuhaupio (4) Portion of Grant 2423 to Kekuhaupio (5) Portion of Grant 2756 to Kulou ( 6) Portion of Grant 2757 to Hehena Kau, Hawaii Description Beginning at a 1i-inch pipe in concrete at the West corner of this tract of land on the northeasterly boundary of L. C. Award 8452:17 to A. Keohokalole and on the southeast side of Kamaoa Road, the coordinates of said point of beginning referred to Government Survey Triangulation Station "Stein 2" being 7,004.71 feet South and 23,748.19 feet ',lest, and running by azimuths measured clockwise from true South: 1. 234° 38' 30" 206.16 feet along the southeast side of Kamaoa Road; thence along the southeast side of Kamaoa Road for the next fourteen courses: 2. 234° 47' 354.53 feet; 3. 236° 46' 50" 28b.24 feet; 4. 233° 45' 101.00 feet; 5. 230° 05' 45" 334.55 feet; 6. 231° 50' 10" 198.59 feet; 7. 238° 03' 10" 198.81 feet; 8. 235° 01' 10" 204.30 feet; j 9. 227° 42' 20" 335.23 feet; 10. 223° 00' 66.00 feet; 11. 227° 16' 30" 366.75 feet; 12. 230° 21' 20" 395.25 feet; 13. 233° 20' 200.00 feet; 14. 232° 09' 10" 254.10 feet; 15. 235° 40' 213.62 feet; thence along File Plan 685 along a curve to the right having a radius of 20.00 feet, the chord azimuth and distance being: EXHIBIT I -1- r f r EXHIBIT II MAP SHOWING IMPROVEMENT DIST'RIC'T' BOUNDARIES, APPROVED SUBDIVISION AND AREAS TO BE ASSESSED BOUND AFTER EXHIBIT V • EXHIBIT III PRELIMINARY SPECIFICATIONS FOR THE GRADING, ASPHALTIC PAVING ON MINERAL AGGREGATE BASE COURSE, DRAINAGE SYSTEM, WATER SYSTEM AND APPURTENANCES FOR IMPROVEMENT DISTRICT NO. KAU, COUNTY OF HAWAII, HAWAII 1. GENERAL. The Contractor shall furnish and pay for all labor, materials, tools, machinery and equipment necessary to construct and fully complete the entire improvement in accordance with County Ordinance No. 24, the plans, details and specifications finally adopted, and generally in accordance with all usual or proper requirements as to inspection by the Engineer. 2. EXCAVATION AND EMBANKMENT. The roadway prism shall be excavated or filled to such a depth below the established grade so that after having been thoroughly compacted, it shall provide for either asphalt macadam or an asphaltic concrete pavement on a mineral aggregate base course. 3. PAVEMENT. After the subgrade has been completed and has passed the in- spection of the Engineer, a six inch (6") thick crushed rock base course shall be constructed. On this base course, the asphaltic pavement of a thickness of 3" for asphaltic macadam or 2" for asphaltic concrete shall be constructed to the required grade. 4. STORM DRAINS. Drains shall be installed as shown on EXHIBIT IV, and shalt be laid to the correct lines and grades finally adopted. Pipe drains shall be of galvanized corrugated sheet metal with specially designed inlet and outlet end of the same material. 5. WATER MAINS AND APPURTENANCES. Water pipe and fittings required shall be cast iron or cement asbestos, of the class and type specified by the Board of Water Supply and shall be installed as shown on plans in accordance with the rules and regulations of the Board of Water Supply. All connections to or breaking into existing mains shall be done by the Board of Water Supply and all pipes and appurtenances shall be subjected to a pressure test in the presence of the Engineer. Water reservoirs shall be constructed of steel plates in accordance with applicable A. W. W.A. specifications. EXHIBIT III EXHIBIT. IV MAP SHOWING ItiMPROVEMEN I S TO BE INSTALLED BOUND AF'I ER EXHIBIT II. * • s EXHIBIT V CONSTRUCTION ESTIMATE IT. NO. I ITEM QUANTITY UNIT UNIT PR. I ITEM COST TOTAL I. }Clearin of Site 500 I acres $ 70. 00 $ 35, 000 Clearing II. Mobilization L. S. ! 60, 000 III. Roadwork (See Sheets 2 and 3) L. S. 359, 100 I I IV. Drainage (See Sheets 4 and 5) L. S. 18, 000 V. Water System (See Sheet 6) L. S. 602, 900 VI. Grading (Golf Course) 155 acres, 450. 00 70, 000 $1, 145, 000 I ' i � I I I PROJECT: IMPROVEMENT DISTRICT _ JOB NO. BY WCE DATE4/25/62 ASA MARK TWAIN UNIT 2 - EXHIBIT V 705 CHKD. DATE SHT. NO. 1 OF 6 AUSTIN, SMITH & ASSOCIATES, INC. — ENGINEERS • 850 RICHARDS ST., HONOLULU. HAWAII From cross-sections of roads "A", "F" and "G" L = 2400 + 1400 + 1400 = 5200 Exca = 5305 + 5200 = 1 . 02 c. y/ft. say 1 c. y. /ft. Emb= 2436 + 5200 =. 47 c.y/ft.� say . 5 c. y. /ft. Rd. 14 16 20 Rd 14 . 1 6...,.. 2,0_ . 1 2 4 14_116 20 A 4900 E 4190 G 6406 Al 130 El 150 Gi 410 A2 230 E2 130 G2 286 A3 370 E3 G3 410 A4 920 E4 1750 G4 680 AS 670 E5 490 G5 860 900 1420 4900 , E6 100 2360 668$ E7 100 B 2900 1 E8 130 H 2306 B1 1230 E9 110 H1 10$ B2 630 El0 110 1-12 550 630 4130 Ell 130 550 2406 • • s .I . C 2960 I 2181 Cl 170 F 5401 I1 20. C2 130 Fl 840 I2 201 C3 130 F2 530 I3 156 170 3220 F3 80 14 250 F4 700 250 2736 D 1800 F5 . • • . D1 450 2760 540( J , 1646 450 1800 _ �.� ..� 1646 ____..�_, ,,,_..i Total 8560' 31980' 9240'=49780' Exca = 50, 000 (1 . 50) = $ 75, 000 Ac 8, 560 (14) = 119, 840 B. C. 8, 560 (8) = 68, 480 31, 980 (16) = 511, 680 31, 980 (9) = 287, 820 9, 240 (20) = 184, 800 9, 240 (11)= 101, 640 = 816, 320 sf = 90, 722 sy 457, 940 cf = 16960 90722 ($2. 15) = $89, 040_ 16960 ($5. 25) = $195. 060 cy - i Total Cost = $371. 600 PROJECT. _ IMPROVEMENT DISTRICT JOB NO 18{CT DATE.4/24/6. AsA MARK TWAIN UNIT 2 - ROADWAY 705 CHKD _DATE_. EXHIBIT V SHT NO. 2 OF_6_ AUSTIN, SMITH & ASSOCIATES. INC. - ENGINEERS • 850 RICHARDS ST . HONOLULU, HAWAII • • . . , From cross-sections of roads "A", "F" and "G" Length of roads used = 2, 400 + 1 , 400 + 1, 400 = 5, 200 ft. Excavation = 5305 + 5200 = 1 . 02 c.y. /ft. say 1 c.y. /ft. Embankment = 2436 + 5200 = . 47 c.y. /ft. say . 5 c.y. /ft. _.�- - -----�-- ...---,-- -r- , Road Road L. F. Paved Surface & System 14' wide 16' 20' Total A i 900 I 1 , 420 4, 900 B 630 R 4, 130 C 170 3, 220 D 450 1, 800 i E 490 2, 560 1 4, 340 i F 2, 760 5, 400 G 2, 360 6, 680 H 550 2, 400 I 250 2, 730 -- 1 640 Total 8, 560 31, 980 9, 240 49, 780 say 50, 000 L. F. Excavation 50, 000 ($1 . 50)= $ 75, 000 Base Course 8, 560 (8)= 68, 480 31, 980 (9)= 287, 820 9, 240 (11)= 101, 640 457, 940 c.f. = 16, 960 c.y. ($5. 25) = 195, 060 A. C. or Macadam 8, 560 (14)= 119, 840 31, 980 (16)= 511, 680 9, 240 (20)= 184, 800 816, 320 s.f. = 90, 722 a.y. ($2. 15)= 89, 040 TOTAL COST ROADWAY $ 359, 100 A PROJECT: IMPROVEMENT DISTRICT JOB NO. BY CT DATE 4/25/6; MARK TWAIN UNIT -2 ROADWAY 705 CHKD.___DATE EXHIBIT V SHT. NO. 3 OF 6 AUSTIN, SMITH & ASSOCIATES, INC. - ENGINEERS • 850 RICHARDS ST.. HONOLULU. HAWAII . , . ! . . . . . • ' • - - • Road System A C CulvertPip_e Ditch thru 18U L=24' 24" L=24' 18"'1=28' 24" L=28' 30" L=24' property ft. 2 5 3 1 260 B 3 450 450 D 1 I 150 E 6 2 F 6 i 430 I I i G 1 5 1 I H I 1 I I 1 , 300 150 30 . J 1 1 0 Total Units 28 3 6 1 1 _ ......... _, Length 672' 72' 168' 28' 24' 4_2490: 168 28 I 1 , Total Length 840' 100' I 1 24' 2490' i I PROJECT. _ IMPROVEMENT D JOB ISTRICT NO ! BY......,-.-r, DATE4/25/ 2 AsA MARK TWAIN UNIT 2 - DRAINAGE 705 ■ CHKD DATE_ EXHIBIT V 1SHT NO. 4 oF 6 AUSTIN, SMITH & ASSOCIATES, INC. FNC-,ENGINEERS- __ __1. .__RS • 850 RI( HARDS ST . HONOLULU. HAWAII a , S • . • • I'.- CONSTRUCTION ESTIMATE IT. NO. ITEM QUANTITY T UNIT UNIT PR. ITEM COST TOTAL 1 . 18" corr. metal pipe 840 L. F. 7. 00 $5, 880 I 2-. 24" corr. metal pipe 100 L. F. 1 7. 70 770 3. 30" corr. metal pipe 24 L. F. 9. 20 200 I I 4. End section for 18" 68 L. F. 100. 00 6, 800 I � 5. End section for 24" 8 L. F. 165. 00 1, 320 6, End section for 30" 2 L. F. 270. 00 540 � I 7. Open ditch 2, 490 L. F. 1. 00 2, 490 $18, 000. 00 A s I i � I � I I i I I _ PROJECT: IMPROVEMENT DISTRICT _ JOB NO. BY DATE _ MARK TWAIN UNIT 2 - DRAINAGE 705 CHKD DATE_ EXHIBIT V SHT. NO. 5 OF 6 AUSTIN, SMITH & ASSOCIATES, INC. - ENGINEERS • 850 RICHARDS ST., HONOLULU, HAWAII . • CONSTRUCTION ESTIMATE IT. NO. ITEM QUANTITY 1 UNIT I UNIT PR. ITEM COST TOTAL . A. SUPPLY LINE 1 1 . 50, 000 Gallon Steel Reservoir 1 EA. $12, 000 $ 12, 000 2. 6" Transite pipe 8, 500 L. F. 7. 50 63, 800 3. Miscellaneous L. S. 2, 000 $ 77, 800 B. HIGH LEVEL DISTRIBUTION SYSTEM 1 1 . 100, 000 Gallon 1 Steel Reservoir 1 EA. $20, 000 $ 20, 000 2. 8" c. i. pipe 2, 200 L. F. 10. 00 22, 000 3. 6" c. i. pipe 18, 400 L. F. j 8. 50 156, 400 4. 4" c. i. pipe 800 L. F. 6. 00 4, 800 5. Miscellaneous L. S . 3, 500 $205, 700 C. INTERMEDIATE LEVEL DISTRIBUTION 1 . 50, 000 Gallon 1 Steel Reservoir 1 EA. $12, 000 12, 000 2. 8" c. i. pipe 1 , 200 L. F. 1 0. 00 12, 000 3. 6" c. i. pipe 21 , 200 I.. F. 8. 50 180, 200 4. 4" c. i. pipe 600 L. F. 6. 00 3, 600 5. Miscellaneous L. S. 4, 000 $212, 800 D. LOW LEVEL DISTRIBUTION SYST 3M 1 . 50, 000 Gallon Steel Reservoir 1 EA. $12, 000 12, 000 2. 8" c. i. pipe 700 L. F. 10. 00 7, 000 3. 6" c. i. pipe 9, 800 L. F. 8. 50 83, 300 4. 4" c. i. pipe • 300 L. F. 6. 00 1 , 800 , 5. Miscellaneous L. S. 2, 500 $106, 600 TOTAL FOR WATER SYSTEM $ 602, 900 1 I AsA PROJECT: IMPROVEMENT DISTRICT JOB NO. BY WE DATE4 '17 MARK TWAIN UNIT 2 - WATER SYSTEM 705 CHKD._ DATE EXHIBIT V SHT. NO._6_OF_L AUSTIN, SMITH & ASSOCIATES, INC. - ENGINEERS • 850 RICHARDS ST., HONOLULU, HAWAII