HomeMy WebLinkAboutRES 224 Draft 02 1998-2000 COUNTY OF HAWAII STATE OF HAWAII
RESOLUTION NO. 224 0~
DRAFT 2
RESOLUTION AUTHORIZING THE ACCEPTANCE OF THE SEWAGE WORKS
CONSTRUCTED BY MARYL GROUP, INC., AND AUTHORIZING THE
REIMBURSEMENT OF THE PARTIAL 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)2-2-047:063, 070 and 074, through the line extension along Maka`ala Street
connecting to the existing County system located on Leilani Street, as detailed on Exhibit A; and
WHEREAS, the Applicant is now desirous of transferring 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 Deparhnent 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 teens the Chief Engineer will recommend acceptance of dedication of the sewerline;
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, the settlement agreement further provides that reimbursement to the
Applicant shall not exceed $1 million or as otherwise agreed upon by the parties; 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 X[II, Section 13-12, Hawaii County Charter,
Section 21-19, Hawaii County Code, and the settlement agreement attached hereto, the County
Council hereby accepts the aforementioned sewage works, and authorizes reimbursement to the
Applicant pursuant to the Final Settlement Agreement 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,
INTRODUCED BY:
COUNCIL MEMBER, COUNTY OF HAWAII
COUNTY COUNCIL Rou CAL[, voTE
COUnty Of H3Wal`1 AYES NOES ABS EX
H110, H3Wa1`l ARAKAKI
('HUNG
I hereby certify that the foregoing RESOLUTION was by ELARIONOFF
The vote indicated to the right hereof adopted by the COUNCI L of the JACOBSON
County of Hawaii on
LF.ITHEAD-TODD
PISICCHIO
ATTEST: SMITH
TYLER
YAGONG
Reference: C-699 009
COUNTY CLERK CHAIRMAN & PRESIDING OFFICER RESOLUTION NO. _ ~ 24 Q ~ C DRAFT 2 )
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EXHIBIT A
FINAL SETTLEMENT AGREEMENT
I. Introduction
This Final Settlement Agreement ("Final Settlement Agreement's 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 073;
38.267 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 of ten years commencing
with the acceptance of the dedication by the County. The County agrees
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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 irrigation
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, may be 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 may be used in any
action for the enforcement of this Final Settlement Agreement.
D. Advice of Counsel. No party has made any representations offact 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. Authorit~to Execute. The parties represent and warrant 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.
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F. Entire Agreement. This Final Settlement Agreement constitutes the entire
agreement between the parties and maybe 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 Final 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.
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K. Further Documents and Acts. The parties agree to execute any other or further
documents, and to perform any and all other acts reasonably required to carry out the purpose of
this Final Settlement Agreement.
L. Attornevs' 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 Fina] 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 Signatures. 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
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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
Carlsmith Ball
Attomey for Maryl Group, Inc.
Date:
TED H.S. HONG
Assistant Corporation Counsel
Attorney for County of Hawaii
Date:
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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:
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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:
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