HomeMy WebLinkAboutCOM 1181.001 2014-2016 Margaret Wille �;3. M_ Phone No. Hilo: (808)961-8027
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Council MemberPhone No. Waimea: (808)887-2043
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District 9-North and South Kohala . Fax No.: (808)887-2072
�'��• E-Mail: mwille@co.hawaii.hi.us
HAWAII COUNTY COUNCIL
County of Hawai'1
Hawai'i County Building Holomua Center West Hawaii Civic Center Bldg.A
25 Aupuni Street 64-1067 Mamalahoa Highway,Suite C-5 74-5044 Ane Keohokalole Hwy.
Hilo,Hawai`i 96720 Waimea, Hawaii 96743 Kailua-Kona,Hawai`i,96740
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TO: Dru Mamo Kanuha, Council Chair
And Members of the Hawai`i County Council
FROM: Margaret Wille, Council Membe /• ?
DATE: November 10, 2016
SUBJECT: Communication No. 1097 Additional Information
Please find attached additional information for use during the Communication No. 1097
discussion on November 15, 2016.
Thank you.
MW/dh
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Serving the Interests of the People of Our Island Ret q
Hawai`i County Is An Equal Opportunity Provider And Employer
LAND COURT SYSTEM REGULAR SYSTEM
Return by Mail( X) Pickup( ) To:
TOTAL NUMBER OF PAGES:
TITLE OF DOCUMENT:
FIRST AMENDED AND RESTATED GRANT OF EASEMENTS
(Easement Trail 5-A, Easement Trail 5-B, Easement Trail-7,
Easement Trail-_, Easement Trail-A Kahawai Street Easement)
PARTIES TO DOCUMENT:
Grantors: MICHAEL W. GIBSON, WARREN H. HARUKI, TIMOTHY E.
JOHNS, DAVID H. McCOY and B. G. MOYNAHAN, as Trustees
under that certain unrecorded LAND TRUST AGREEMENT FOR
THE PARKER LAND TRUST dated September 13, 2002, with powers
to sell, mortgage, lease, etc., all of whose principal place of business is in
Kamuela, Hawaii and all of whose post office address is 67-1435
Mamalahoa Highway, Kamuela, Hawaii 96743
Grantee: COUNTY OF HAWAII, a municipal corporation of the State of Hawaii,
whose address is 25 Aupuni Street, Hilo, Hawaii 96720
Affects: Portions of TMKs(3rd)6-6-003:013 portion(Easement Trail-5-A),(Easement Trail 5-B),6-6-003: 013
portion(Kahawai Street Easement),6-6-001: 038(Easement Trail-7,Easement Trail- ),6-5-003: 005(Easement
Trail-A)
4813-4279-6551.1
FIRST AMENDED AND RESTATED GRANT OF EASEMENTS
(Easement Trail 5-A, Easement Trail 5-B,Easement Trail-7,
Easement Trail-_ , Easement Trail-A Kahawai Street Easement)
This First Amended and Restated Grant of Easements (Easement Trail 5-A, Easement
Trail-7, Easement Trail- , Easement Trail-A Kahawai Street Easement) (hereinafter referred
to as "First Amended and Restated Grant of Easements") is made as of this day of
, 2010, by and between MICHAEL W. GIBSON, WARREN H. HARUKI,
TIMOTHY E. JOHNS, DAVID H. McCOY and B. G. M.OYNAHAN, as Trustees under
that certain unrecorded LAND TRUST AGREEMENT FOR THE PARKER LAND
TRUST dated September 13, 2002, with powers to sell, mortgage, lease, etc., all of whose
principal place of business is in Kamuela, Hawaii, and all of whose post office address is 67-
1435 Mamalahoa Highway, Kamuela, Hawaii 96743, hereinafter called the "Grantor," and the
COUNTY OF HAWAII, a municipal corporation of the State of Hawaii, whose address is 25
Aupuni Street, Hilo, Hawaii 96720, hereinafter called the "Grantee,-
RECITALS:
WHEREAS, by Grant of Easements (Easement Trail 5-A, Easement Trail-7, Easement
• Trail-A Kahawai Street Easement, dated November 15, 2007, and recorded in the Bureau of
Conveyances of the State of Hawaii as Document No. 2007-204670 (hereinafter referred to as
"2007 Grant of Easements"), the Grantor assigned and granted certain non-exclusive rights and
easements to the Grantee solely for pedestrian and non-motorized vehicular public access
purposes as described in the 2007 Grant of Easements; and
WHEREAS, the parties hereto have agreed to amend and restate the 2007 Grant of
Easements in its entirety to document and set forth certain additional covenants and agreements
between the parties with respect to the rights and easements to be assigned and granted to the
Grantee by the Grantor for pedestrian and non-motorized vehicular public access purposes in the
real properties described in this First Amended and Restated Grant of Easements.
NOW, THEREFORE, in consideration of the mutual promises contained herein, and
other good and valuable consideration, the receipt of which is hereby acknowledged, the
4813-4279-65511 2
undersigned parties do hereby agree that the 2007 Grant of Easements shall be amended and
restated in its entirety to read as follows:
MICHAEL W. GIBSON, WARREN H. HARUKI, TIMOTHY E. JOHNS, DAVID
H. McCOY and B. G. MOYNAHAN, as Trustees under that certain unrecorded LAND
TRUST AGREEMENT FOR THE PARKER LAND TRUST dated September 13, 2002,
with powers to sell, mortgage, lease, etc., all of whose principal place of business is in Kamuela,
Hawaii, and all of whose post office address is 67-1435 Mamalahoa Highway, Kamuela, Hawaii
96743, hereinafter called the "Grantor," for and in consideration of the sum of ONE DOLLAR
($1.00) and other good and valuable consideration received by the Grantor, the receipt whereof is
hereby acknowledged, and in further consideration of the covenants and conditions herein
contained to be observed and performed by the Grantee, hereby assign and grant unto the
COUNTY OF HAWAII, a municipal corporation of the State of Hawaii, whose address is 25
Aupuni Street, Hilo, Hawaii 96720, hereinafter called the "Grantee," (1) a non-exclusive,
pedestrian and non-motorized vehicular access easement in, over and across certain real property
owned by the Grantor, which Easement is described as Easement Trail-5-A, Easement Trail-7,
Easement Trail , and Easement Trail-A in Exhibit A attached hereto (the "Easement") and
incorporated herein by reference, together with the right of ingress and egress thereto and
therefrom for the purposes of constructing, reconstructing, installing, maintaining, replacing and
repairing improvements in, upon, over and across the Easement for the purposes hereinafter
provided and (2) a non-exclusive access easement in, over and across certain other real property
owned by Grantor which easement is described as Easement A, Easement B, Easement C,
Easement D and Easement E in Exhibit B attached hereto (collectively, the "Kahawai Street
Easement") and incorporated herein by reference, for the purpose of access to the Easement.
The Easement as described in Exhibit A is located on, and shall run with and bind the
lands of the Grantor situate at Waimea, District of South Kohala, Island and County of Hawaii,
State of Hawaii, designated on the tax maps of the Third Taxation Division, State of Hawaii, as
Tax Map Key Nos. 6-6-003: 013 (Easement Trail-5A), 6-6-001: 038 (Easement Trail-7)
(Easement Trail- ), 6-5-003: 005 (Easement Trail-A). The Kahawai Street Easement as
described in Exhibit B is located on, and shall run with and bind, the land of the Grantor situate
at Waimea, District of South Kohala, island and County of Hawaii, State of Hawaii. designated
4813-4279-6551.1 3
on the tax maps of the Third Taxation Division, State of Hawaii, as Tax Map Key No. 6-6-003:
013.
The foregoing grants of easement are made upon and subject to the following terms and
conditions:
1. The rights herein granted within and over the Easement are given solely for
pedestrian and non-motorized vehicular access purposes as herein described as a portion of the
Waimea Trails and Greenways Project; the grant and rights herein stated within and over the
Easement shall be non-exclusive and the Grantee shall have no right to sell, assign, transfer or
otherwise convey any part or portion of the rights or privileges herein granted except upon the
prior written approval of the Grantor. The Grantor shall allow the use of Kahawai Street
Easement for public access to the Easement; the grant and rights herein stated within and over
the Kahawai Street Easement shall be non-exclusive, and the Grantee shall have no right to sell,
assign, transfer or otherwise convey any part or portion of the rights or privileges herein granted
except upon the prior written approval of the Grantor.
2. The location of the Waimea Trails and Greenways trail shall be strictly limited to,
installed and constructed within the land area of the Easement described in Exhibit A. Prior to
any public use of the trail within the Easement described in Exhibit A by members of the public,
the Grantee shall reimburse Grantor the sum of$8,000.00 as reimbursement for Grantor's costs
to construct and install appropriate fencing or other barriers on the south/southwest bank of the
Waikoloa Stream, which physically separates the Easement area from the Grantor's surrounding
lands and prevent the intrusion of Grantor's livestock into the Easement area. After installation,
Grantee shall own, maintain, repair and replace the fencing. Replacement of any or all portions
of the fencing or other barriers installed by Grantee as provided in this Paragraph shall be no less
effective in preventing the intrusion of Grantor's livestock into the Easement area.
3. No portion of the Easement or the Kahawai Street Easement shall be used for
parking, vehicle access (other than emergency, maintenance and repair vehicles as the need
arises) or equestrian purposes. Except as to the foregoing, the Easement described in Exhibit A
shall be used at all times in a manner consistent with the Waimea Trails and Greenways Project.
4. The Grantor shall retain the right to use the land within the Easement and the
Kahawai Street Easement for any and all purposes of the Grantor, provided such use shall not
materially interfere with the rights or privileges herein granted and Grantor's use of the same for
4813-4279-6551.1 4
Grantor's purposes shall not be nor be deemed to be an interference with any rights or privileges
of the Grantee therein, nor shall such use relieve the Grantee of any of its obligations,
agreements, covenants or promises contained in this Grant of Easements and the Grantee's sole
remedy for any of Grantor's uses which do not materially interfere with the rights or privileges
herein granted shall be the termination of this Grant of Easements.
5. Provided the same is consistent with the Waimea Trails and Greenways Project,
the Grantor shall have the right to relocate portions of the Easement and/or the Kahawai Street
Easement at Grantor's sole expense.
6. The Grantor shall not be liable to the Grantee or any other person for any costs
and expenses with respect to the construction, reconstruction, repair or maintenance of the
Easement or the Kahawai Street Easement, or of any of the improvements, equipment or
installations on, upon, under or within the Easement or the Kahawai Street Easement for the
purposes herein stated, save and except as set forth in Paragraph 8 below. After any
construction, repair or other work has been completed within the Easement area by the Grantee,
the surface of the ground and of any road, fence or trail disturbed by Grantee (whether within the
Easement or the Kahawai Street Easement or on the Grantor's surrounding lands) shall be
restored by Grantee to its condition existing prior to such construction, repair or other work to
the extent that such restoration is reasonably possible consistent with the rights herein granted for
the purposes stated.
7. The Grantee shall, at Grantee's sole cost, at all times keep and maintain the
Easement in a safe and proper condition and in compliance with all laws and regulations
applicable thereto. The Grantee shall keep the Easement reasonably clear of litter and refuse.
and will not permit any motor vehicles, motor scooters, mopeds, all terrain vehicles (ATVs),
motorcycles or other motorized forms of transportation, except for motorized wheelchairs, to be
used on or within the Easement, it being the intent of the parties that the Easement shall be used
• only for foot and non-motorized traffic, and Grantee will not allow the Easement to be used for
any purpose not expressly permitted herein.
8. Grantor shall be liable •for and repair, at Grantor's sole cost, any injury or damage
to the Easement or any of the improvements, equipment or installations on, upon, under or within
the Easement caused by or resulting from the acts, omissions or negligence of the Grantor, or the
Grantor's agents, representatives, invitees or assigns.
4813-4279-655IA 5
9. From time to time Grantor shall have the right to make one or more other non-
exclusive grants of easement or other rights and privileges on, over, in or within the Easement or
the Kahawai Street Easement or the Grantor's surrounding lands to governmental authorities,
public or private utilities, corporations or others for access and/or other purposes, provided,
however, that such grants shall not substantially and materially interfere with the rights and
•
privileges herein granted.
10. Grantee acknowledges that Grantor used a portion of the lands upon which the
Easement is located as security under a Security Agreement dated March 20. 1998 between
Grantor's predecessor (the Richard Smart Revocable Personal Trust) and Grantee involving the
Parcel 42 Subdivision (real property at Puukapu, Waimea, South Kohala, County and State of
Hawaii, bearing Tax Map Key [3] 6-4-001: 042 (as of 1998)). Grantee agrees that with respect
to the use of such lands as security under the Security Agreement and any future Security
Agreements that Grantor may enter with Grantee, the appraised value of those lands for such
security purposes shall not be diminished or lessened because of the rights and privileges herein
granted and any appraisal of such lands for such purposes shall disregard this Grant and the
rights and privileges granted herein.
11. Grantee shall, at all times, indemnify, save harmless, and undertake the defense of
• Grantor, and the Grantor's affiliates (i.e., an entity under common ownership or control with
Grantor), trustees, shareholders, officers, directors, agents, employees, representatives and
assigns, against any and all claims, demands, liens, actions, causes of action, suits and recoveries
of every kind and description, and including any and all claims, liabilities, damages and losses
arising out of injury to or death of any person, or damage or loss to any property, and against all
losses, costs and damages, including, without limitation, attorneys' fees and costs of court,
arising from or on account of (i) the use of the Easement or the Kahawai Street Easement, (ii)
any of Grantee's installations, improvements or other betterments to the Easement or the
Kahawai Street Easement. (iii) Grantee's failure to observe and perform any of the terms,
covenants, conditions and agreements contained in this Grant to be observed and performed by
the Grantee herein, and (iv) any acts, omissions or negligence of Grantee, or Grantee's agents,
representatives, invitees or assigns. The Grantor shall indemnify and save the Grantee harmless
from all liability for injury to, or death of persons, or injury or damage to property, arising from
• the sole negligence or willful actions of the Grantor or Grantor's agents, representatives or
48134279-6551.1 6
employees. Notwithstanding any other term or provision of this Grant, Grantor and Grantee
understand and agree that the Grantee's liabilities and obligations under this Paragraph are
intended to supplement, but not supersede or cancel, the immunity provided to Grantor pursuant
to Chapter 520, Hawaii Revised Statutes, for permitting access to and use of the Easement and
the Kahawai Street Easement for recreational purposes. The Grantor's and Grantee's liabilities
and obligations under this Paragraph shall survive any termination of this Grant.
12. This Grant, and the rights and privileges herein stated, shall terminate and cease
to he of any further force or effect whatsoever upon the occurrence of any of the following:
A. The mutual agreement of the Grantor and Grantee; or
B. The Grantee's failure to observe and perform any of the terms, covenants,
conditions and agreements contained in this Grant to be observed and performed
by the Grantee and the Grantee's failure to cure such default (other than the
payment of money as herein provided) within thirty (30) days of Grantee's receipt
of written notice from the Grantor of such default.
13. Upon any termination of this Grant and the rights and privileges herein stated as
herein provided, the parties agree that in the event this Grant or a memorandum thereof has been
recorded in the Bureau of Conveyances of the State of Flawaii, the parties hereto shall execute,
acknowledge and deliver an appropriate written instrument in a form determined by the Grantor,
in its sole discretion, to evidence and document such termination. Upon such termination, if so
requested by the Grantor, the surface of the ground within the Easement shall be restored by the
Grantee to its condition existing prior to this Grant.
14. If this Grant is not terminated as provided above, if either party to this Grant
breaches any of the terms, covenants, conditions and agreements contained in this Grant, the
other party may apply for appropriate equitable relief in the courts of the State of Hawaii to
enforce its rights under this Grant and the prevailing party in any such application for equitable
relief shall be entitled to recover its reasonable attorneys fees and costs as allowed by law and
the Rules of Court.
15. Grantor has disclosed that an investigation by the Army Corps of Engineers
showed that there was (and may be) unexploded ordnance on certain of Grantor's lands. Grantee
acknowledges that it has been given full opportunity to read the Engineering Evaluation/Cost
Analysis, Former Waikoloa Maneuver Area, Parker Ranch Region, Kamuela, Island of Hawaii
4813-4279-6551.1 7
dated March 1999. Grantee acknowledges that portions of lands described in the Analysis are
raw and unimproved and Grantor has made no effort to determine or remedy possible hazards
that may exist on the lands and Grantee will enter the Easement area, and allow Grantee's
invitees (including the public at large) to enter the Easement area, at Grantee's sole risk and
liability. Grantee shall be solely responsible for the preparation and installation of all necessary
and appropriate signs, markers and other similar warning, informational and advisory facilities
with respect to the Easement and the extant conditions thereof and to inform persons on the
Easement of the same and the possible dangers attendant thereto. Grantee releases Grantor, and
Grantor's affiliates (i.e., an entity under common ownership or control with Grantor), trustees,
shareholders, officers, directors, agents, employees, representatives and assigns, from all claims
or liability for any injury or loss that might occur within the Easement area for whatever reason
or cause, including without limitation, unexploded ordinance.
16. This Grant shall remain in full force and effect until such time as the Waimea
Trails and Greenways Project is abandoned and upon such abandonment, Grantee, its successors
or assigns, shall execute any and all such document as are necessary to evidence the
extinguishments of this Grant. Upon such extinguishment, all rights to the Easement and the
Kahawai Street Easement areas shall then automatically revert to Grantor, its successors or
assigns.
17. It is expressly understood and agreed by and between the parties hereto and by all
persons having notice hereof, that all of the obligations of the Grantor hereunder shall be the
obligations of the Grantor, in their capacities as Trustees under unrecorded Land Trust
Agreement for the Parker Land Trust dated September 13, 2002, and not the personal obligation
of the Grantor, or any of their officers, agents or employees, and no personal liability is assumed
by or shall at any time be asserted or enforced against the Grantor, their officers, or employees
on account of any obligations in this Agreement, or otherwise, either expressed or implied, all
such personal liability, if any, being expressly waived and disclaimed; it being understood that
the Grantee or anyone claiming by, through or under the Grantee or claiming any rights under
this Agreement shall look to the trust estate, but not to the Grantor, their officers, agents, or
employees for the enforcement or collection of any such liability.
18. Pursuant to that certain "Parker Land Trust: Succession of Trustees and Amended
Designation of Trustees Authorized to Execute Land Trust Documents" dated April 17, 2008,
48134279-6551.1 8
filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii as Land
Court Document No. 3742479, and also recorded in the Bureau of Conveyances of the State of
Hawaii as Document No. 2008-070045, any three (3) of the Trustees of the Parker Land Trust
are authorized to execute this instrument.
19. This First Amended and Restated Grant of Easements hereby amends, restates,
supersedes, and replaces in its entirety that certain November 15, 2007 Grant of Easements
recorded in the Bureau of Conveyances as Document No. 2007-204670.
This document may be signed in counterparts, each of which shall be deemed an original,
and said counterparts shall together constitute one and the same agreement, binding all of the
parties hereto, even if all of the parties did not sign the original or the same counterparts. For all.
purposes, duplicate unexecuted pages of the counterparts may be discarded and the remaining
pages assembled as one document.
The parties agree that the person or company recording or arranging for the recordation
of this instrument is authorized to complete any blanks contained in this instrument with the
applicable number of pages. dates. and recordation information, whether before or after this
instrument has been notarized by a notary public, and in no event shall completion of any such
blanks be deemed an alteration of this instrument by means of the insertion of new content.
THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK
4813-4279-6551.1 9
IN WITNESS WHEREOF the Grantor and Grantee have caused this instrument to be duly
executed on this day of , 2007.
Trustees under that certain unrecorded LAND
TRUST AGREEMENT FOR THE PARKER
LAND TRUST dated September 13, 2002
By
Its Trustee
By
Its Trustee
By
Its Trustee
By
Its Trustee
By
Its Trustee
GRANTOR
COUNTY OF HAWAII, a municipal
corporation of the State of Hawaii
By:
GRANTEE
APPROVED AS TO FORM AND CONTENT:
Deputy Corporation Counsel
Date:
4813-4279-6551.1 10
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