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HomeMy WebLinkAboutRES 224 Draft 01 1998-2000 COUNTY OF HAWAII STATE OF HAWAII S"3 RESOLUTION N0.224 00 RESOLUTION AUTHORIZING THE ACCEPTANCE OF THE SEWAGE WORKS CONSTRUCTED BY MARYL GROUP, INC., AND AUTHORIZES THE REIMBURSEMENT OF THE FULL COST FOR THE SEWAGE WORKS. WHEREAS, Maryl Group, Inc., formerly known as Maryl Development, Inc. ("Applicant") has completed the sewer line extension from the Waiakea Center located at TMKs:(3)2-2-047:056, 063 and 064, through the line extension along Makaala Street connecting to the existing County system located on Leilani Street, as detailed on Exhibit A; and WHEREAS, the Applicant is now desirous of transfemng the sewer extension to the County of Hawaii; and WHEREAS, pursuant to Section 21-19, Hawaii County Code, all sewage works found acceptable by the engineer shall become the property of the County and shall be maintained and operated as part of the public system; and WHEREAS, the Chief Engineer of the Department of Public Works has found the said sewage works to be acceptable pursuant to Chapter 21, Hawaii County Code; and WHEREAS, the Applicant is desirous of receiving reimbursement of the cost of said sewage works from the County; and WHEREAS, the administration, which includes the Department of Public Works and its Wastewater Division, has reached an amended settlement, which is attached hereto as Exhibit B, and upon its terms the Chief Engineer will recommend acceptance of dedication of the sewerline; WHEREAS, the settlement agreement further provides that reimbursement to the Applicant shall not exceed the cost of $1 million or as otherwise agreed upon by the parties; and WHEREAS, the full cost of the said sewage works is One Million Four Hundred Five Thousand Four Hundred Ninety-One and 71/100 Dollars ($1,405,491.71); and WHEREAS, Ordinance 96-51 requires that plans to reimburse the Applicant for construction of the sewer extension shall require the approval of the County Council by resolution. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that in accordance with Article XIII, Section 13-12, Hawaii County Charter, Section 21-19, Hawaii County Code, and the settlement agreement attached hereto, the Chief Engineer is authorized to accept the aforementioned sewage works, and reimburse the Applicant for said cost from present and future fiscal year funds, if necessary. BE IT FURTHER RESOLVED that copies of this resolution be transmitted to Mayor Stephen K. Yamashiro, Chief Engineer Robert K. Yanabu, Wastewater Division Chief Peter Boucher, and Finance Director Harry A. Takahashi. DATED: Hilo, Hawaii, INTRO D BY: COUNCIL MEMBER, COUNTY OF AWAII COUNTY COUNCIL ROLL CALL VOTE County of Hawaii Aves NOES ABS EX Hilo, Hawaii ARAKAKI CHUNG I hereby certify that the foregoing RESOLUTION was by ELARIONOFF the vote indicated to the right hereof adopted by the COUNCIL of the )ACOBSON County of Hawaii on LEITHEAD-TODD ATTEST: PISICCHIO SMITH TYLER YAGONG COUNTY CLERK CHAIRMAN & PRESIDING OFFICER Reference: C-692~FC RESOLUTION NO. 22~ nn F 1, ~ - ~ wl T ~ PROJECT aFF St1"F LOCATION t I[ S W wlC[ Sl, f K`~i~5 NOT TO SCALE `ti, _ ~ r L uLn St. I f \e_ PWInAe(I St PMPA1 $t wdva ~ \ 1 _ Iu f R1H KLWAL cnw.aPCn S~ a/sra/Cr SUUIH XOKiC.I / 0IS1P./C7 H.VGKUA 0/Sia/U N7RlH H/LO J/SIR/CI ~ F./TUNA KEA ,'/~O HaarN KGS•A v/sra/c~ B HILO K.uLUA-KONa SIN/IN MLO O/SIR/CJ 1 KEA:.U KIPU POINT l / ~W~' = PaHOa I savrN ~ Rtr/a nlsrR/crp 1 KIXyq HOKUMA POINT KAU 0/S/R/Cf 0 fRlC! - HAIJA// ?OL CANOES PALIMA POINT NAr/ONAL PARK 1 7 savra Pr Figure 1 Project ' Location Parsons Engineering Science, /nc. EXHIBIT "A" FINAL SETTLEMENT AGREEMENT I. Introduction This Final Settlement Agreement ("Final Settlement Agreement") is effective on this day of , 2000, by and between MARYL GROUP, INC., a Hawaii corporation, formerly known as MARYL DEVELOPMENT, INC. (referred to herein as "Maryl"), and the COUNTY OF HAWAII, a municipal corporation of the State of Hawaii (referred to herein as "County"). II. Covenants, Agreements and Representations In accordance with the preceding recitals and in consideration of the covenants, agreements, and representations set forth in this Final Settlement Agreement, Maryl and the County agree and contract as follows: A. Reimbursement Plan. The parties hereto agree that upon acceptance for dedication of the Waiakea Center sewerline extension constructed by Maryl, the County shall authorize and allow reimbursement of sewer charges collected by the County from: 1. The Prince Kuhio Plaza project (TMKs:(3)2-2-047:006, 066 and 064; 32.313 acre portion); and 2. Any and all residential and non-residential hookups to the sewer extension, as that alignment is depicted on Exhibit A attached hereto and incorporated herein by reference for the period often years commencing with the acceptance of the dedication by the County. The County agrees -1- EXHIBIT B that at the end often years, if Maryl's revenue reimbursements do not reach a cap of $1 million, the County shall pay the difference by reimbursing Maryl up to the $1 million cap. The reimbursement payment, if any, to Maryl shall be paid in full within ninety (90) days after expiration of the above ten-year period. B. No Reimbursement From Waiakea Center. With the exception of any imgation credits, the sewer fees collected from the Waiakea Center shall not be eligible for reimbursement under this Final Settlement Agreement or the County's sewer extension program as outlined in § 21-28, Hawaii County Code. C. No Admission. The parties hereto acknowledge that neither this Final Settlement Agreement, nor the fact of settlement, nor the settlement negotiations or proceedings are, maybe construed as, maybe deemed evidence of, or may be used at any time as an admission, presumption, or inference of fault, wrongdoing or liability of any party in any case, action, or proceeding in any court, administrative agency, or other tribunal, or in any manner, for any purpose whatsoever, except, however, that this Final Settlement Agreement maybe used in any action for the enforcement of this Final Settlement Agreement. D. Advice of Counsel. No party has made any representations of fact or opinion to another party to induce this compromise, and this compromise is made by the parties with full knowledge of the facts and possibilities of the case, and with the advice of experienced counsel. E. Authority to Execute. The parties represent and wan-ant that their signatories to this Final Settlement Agreement have the authority to execute and bind the party or parties on whose behalf this Final Settlement Agreement is signed. -2- F. Entire Agreement. This Final Settlement Agreement constitutes the entire agreement between the parties and may be changed, modified, or amended only by all parties executing a written instrument. G. No Waiver. Waiver of any breach of this Final Settlement Agreement by any party shall not be deemed a waiver by such party of any other breach of this Final Settlement Agreement. H. Governing Law. This Final Settlement Agreement shall be governed by and interpreted under the laws of the State of Hawaii. In the event of any dispute or litigation relating to the matters within the scope of this Final Settlement Agreement, the parties consent to the jurisdiction of the courts of the Circuit Court of the Third Circuit, State of Hawaii, and further agree that the courts of the Circuit Court of the Third Circuit, State of Hawaii, shall constitute the place of sole, exclusive, and mandatory jurisdiction and venue over such disputes or litigation. I. No Party Deemed Drafter. The terms of this Fina] Settlement Agreement have been negotiated at arms' length among knowledgeable parties represented by experienced counsel. As a result, the rule of "interpretation against the draftsman" shall not apply in any dispute over interpretation of the terms of this Final Settlement Agreement. J. Prior Agreements Canceled. This Final Settlement Agreement contains the entire agreement between the parties and supersedes and cancels each and every other prior conflicting agreement, promise and/or negotiation among them. The terms of this Final Settlement Agreement are contractual and are not a mere recital. -3- K. Further Documents and Acts. The parties agree to execute any other or further documents, and to perform any and alt other acts reasonably required to carry out the purpose of this Final Settlement Agreement. L. Attorneys' Fees and Costs. Each party hereto shall bear all attorneys' fees and costs arising from the actions of its own counsel in connection with the litigation and the matters and documents referred to herein, including the filing of the Stipulation to Dismiss. M. Enforcement If any party to this Final Settlement Agreement goes to court to enforce any provision of this Final Settlement Agreement, the prevailing party shall receive its reasonable attorneys' fees and costs. N. Complete Bar. Execution of this Final Settlement Agreement is a complete and final bar to any and all claims, actions, causes of action, claims for relief, liabilities, costs, expenses, fees demands, injuries, losses, and damages of whatever name or nature against Maryl and County in any manner arising, growing out of, connected with or in any manner involving, traceable to, directly or indirectly, concerning or relating to the matters covered by this Final Settlement Agreement; and this Final Settlement Agreement forever and fully compromises, settles and terminates any and all disputes, claims, claims for injury, loss, damage, costs, expenses, and fees of whatever nature, known or unknown, in any manner arising, growing out of, connected with or in any manner traceable to, directly or indirectly, concerning or relating to the matters covered by this Final Settlement Agreement. O. Counterparts and Fax Si nag tures. This Final Settlement Agreement maybe executed in any manner of counterparts and/or by facsimile (fax) signature by the parties hereto, each of which shall be deemed an original, but all of which together shall constitute one and the -4- same instrument. Where any execution signature is provided by fax, the party providing such signature shall provide an original within seven days. IN WITNESS WHEREOF the parties have caused this Final Settlement Agreement to be executed as of the day above written. DATED: Kailua-Kona, Hawaii, MARYL DEVELOPMENT, INC., now known as MARYL GROUP, INC., a Hawaii corporation By Its DATED: Hilo, Hawaii, COUNTY OF HAWAII, a municipal corporation By STEPHEN K. YAMASHIRO Its Mayor APPROVED AS TO FORM AND CONTENT: STEVEN S.C. LIM Cazlsmith Ball Attorney for Maryl Group, Inc. Date: TED H.S. HONG Assistant Corporation Counsel Attorney for County of Hawaii Date: -5- STATE OF HAWAII ) SS. COUNTY OF HAWAII ) On this day of , 2000, before me appeared to me personally known, who, being by me duly sworn, did say that he is the of MARYL GROUP, INC., formerly known as MARYL 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 that said acknowledged said instrument to be the free act and deed of said corporation. Signature Print or Type Name Notary Public, State of Hawaii My Commission Expires: -6- STATE OF HAWAII ) SS. COUNTY OF HAWAII ) On this day of , 2000, before me personally appeared STEPHEN K. YAMASHIRO, to me personally known, who, being by me duly sworn, did say that he 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 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 STEPHEN K. YAMASHIRO acknowledged said instrument to be the free act and deed of said County of Hawaii. Signature Print or type name Notary Public, State of Hawaii My Commission Expires: -7-