HomeMy WebLinkAboutRES 063 Draft 01 2016-2018 .;�tVlos,,
COUNTY OF HAWAII -• " / • STATE OF HAWAII
,,,,,,,,,,,,,, ,,,
RESOLUTION NO. 63 17
RESOLUTION ACCEPTING A GRANT OF PUBLIC ACCESS EASEMENT FROM
CHARLES A. ANDERSON, TRUSTEE OF THE CHARLES A. ANDERSON TRUST,
AND LISA L. ANDERSON, TRUSTEE OF THE LISA L. ANDERSON TRUST, FOR
PUBLIC ACCESS PURPOSES.
BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII.
WHEREAS, CHARLES A. ANDERSON, TRUSTEE OF THE CHARLES A.
ANDERSON TRUST and LISA L. ANDERSON, TRUSTEE OF THE LISA L. ANDERSON
TRUST are owners of the real property identified by Tax Map Key: (3) 5-3-006:027, situated at
`Ainakea, District of North Kohala, County and State of Hawaii;
WHEREAS, Tax Map Key: (3) 5-3-006:027 is a parcel of land involved in subdivision
action SUB-7776 (Subdivision application 2000-056), approved March 19, 2004;
WHEREAS,pursuant to the Settlement Agreement dated the fourth (4th) day of April,
2002, between the County of Hawai`i and Surety Kohala Corporation (formerly Chalon
International of Hawaii, Inc.), it was agreed upon that among other subdivisions, the lands of
SUB-7776 would be subject to the public access requirements of Chapter 34 of the Hawai`i
County Code;
WHEREAS, pursuant to the Settlement Agreement dated the fourth(4th) day of April,
2002, between the County of Hawai`i and Surety Kohala Corporation (formerly Chalon
International of Hawai`i, Inc.), the public accesses will not be officially open to the public until
easement documents have been approved by both parties and the easements conveyed to and
accepted by the County;
WHEREAS, Article XIII, Section 13-12 of the Hawai`i County Charter, provides that
the Council, on behalf of the County of Hawai`i, may accept gifts or donations of money,
securities or other personal property or of real estate or any interest in real estate;
WHEREAS, the North Kohala Community Development Plan identifies the acquisition
of a continuous lateral access along the sea coast from Kapanai'a to `Ainakea as the No. 1
priority under Section 4.2-Public Access;
WHEREAS, CHARLES A. ANDERSON, TRUSTEE OF THE CHARLES A.
ANDERSON TRUST and LISA L. ANDERSON, TRUSTEE OF THE LISA L. ANDERSON
TRUST, the owners of the real property identified by Tax Map Key: (3) 5-3-006:027, situated at
- 1 -
`Ainakea, District of North Kohala, County and State of Hawai`i, are desirous of granting the
County of Hawai`i the pedestrian public access easement, which easement is more particularly
described and delineated in Exhibit "1" attached hereto as a Grant of Public Access Easement;
and
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY
OF HAWAII, in accordance with Article XIII, Section 13-12 of the Hawai`i County Charter,
the County of Hawai`i accepts the Grant of Public Access Easement described and delineated in
Exhibit "1" attached hereto, from CHARLES A. ANDERSON, TRUSTEE OF THE CHARLES
A. ANDERSON TRUST and LISA L. ANDERSON, TRUSTEE OF THE LISA L. ANDERSON
TRUST.
BE IT FINALLY RESOLVED that the Clerk of the County of Hawai`i is directed to
transmit copies of this Resolution to: The Honorable Harry Kim, Mayor of the County of
Hawai`i; Michael Yee, Director of the County of Hawai`i Planning Department; the Corporation
Counsel for the County of Hawai`i; and Steven S.C. Lim, Esq., Carlsmith Ball LLP, 121
Waianuenue Avenue, Hilo, Hawai`i 96720.
Dated at Hilo , Hawai`i, this 8th day of February , 2017
INTRODUCED BY:
allo.
COUNCIL MEMBER, C 'rTY OF HAAPI
COUNTY COUNCIL ROLL CALL VOTE
County of Hawai`i AYES NOES ABS EX
Hilo, Hawai`i CHUNG X
DAVID X
I hereby certify that the foregoing RESOLUTION was by EOFF X
the vote indicated to the right hereof adopted by the COUNCIL of the KANUHA
County of Ilawai`i on February 8, 2017 X
LEE LOY X
O'HARA X
ATTEST: POINDEXTER X
RICHARDS X
RUGGLES X
` I 9 0 0 0
w •6�i"'J Reference: C-90/Waived FC
COUNTY CLERK CHAIRPERSON&PRESIDING OFFICER RESOLUTION NO. 63 17
- 2 -
LAND COURT REGULAR SYSTEM
Return By Mail X Pick-Up To:
CARLSMITH BALL LLP
121 Waianuenue Avenue
Hilo, Hawaii 96720
Attention: Steven S. C. Lim
Telephone No.: (808) 935-6644 TOTAL NUMBER OF PAGES:
TITLE OF DOCUMENT:
GRANT OF PUBLIC ACCESS EASEMENT
PARTIES TO DOCUMENT:
GRANTOR: CHARLES A.ANDERSON,Trustee of that certain unrecorded Charles A.
Anderson Trust dated January 19, 1995,with full powers to sell,mortgage,
lease or otherwise deal with the land, whose mailing address is Post Office
Box 367,Paauilo,Hawaii 96776 and LISA L. ANDERSON,Trustee of that
certain unrecorded Lisa L.Anderson Trust dated January 19, 1995,with
full powers to sell,mortgage,lease or otherwise deal with the land, whose
mailing address is Post Office Box 367,Paauilo,Hawaii 96776
GRANTEE: COUNTY OF HAWAII, a political subdivision of the State of Hawaii,
whose principal place of business and mailing address is 25 Aupuni Street,Hilo,
Hawaii 96720
TAX MAP KEY(3)5-3-006:027(portion)
(being Lot 14-D, under Subdivision No. 08-736)
Affects TCT 995,963 4827-4451-3289.2/10-07-16
EXHIBIT 1
GRANT OF PUBLIC ACCESS EASEMENT
THIS GRANT OF PUBLIC ACCESS EASEMENT is made this 0 day of
fiGItlVlgry , 20 11 , by and between CHARLES A. ANDERSON, Trustee of that
certain unrecorded Charles A. Anderson Trust dated January 19, 1995,with full powers to
sell, mortgage, lease or otherwise deal with the land, whose mailing address is Post Office
Box 367,Paauilo, Hawaii 96776 and LISA L. ANDERSON, Trustee of that certain
unrecorded Lisa L. Anderson Trust dated January 19, 1995,with full powers to sell,
mortgage, lease or otherwise deal with the land, whose mailing address is Post Office Box
367, Paauilo,Hawaii 96776, hereinafter called"Grantor", and the COUNTY OF HAWAII, a
political subdivision of the State of Hawaii, whose principal place of business and mailing
address is 25 Aupuni Street, Hilo, Hawaii 96720, hereinafter called"Grantee".
WITNES SETH:
WHEREAS, Surety Kohala Corporation, a Hawaii corporation ("SKC")was the
Subdivider under Subdivision No. 7776A, approved by the County of Hawaii Planning
Department on March 19, 2004, also being Lot 14, shown on Map 1, Land Court Consolidation
No. 216; and
WHEREAS, Easement 11 for pedestrian public access purposes as set forth by
Land Court Order No. 179804, filed on August 4, 2009 affects Lot 14; and
WHEREAS,Ainakea Makai, LLC, a Hawaii limited liability company ("Ainakea
Makai"), as successor-in-interest to SKC, subdivided Lot 14 and created Lots 14-A, 14-B,
14-C and 14-D, under Subdivision No. 08-736, approved by the County of Hawaii Planning
Department on November 6, 2009; and
WHEREAS, a portion of Easement 11 affects Lot 14-D, as shown on Map 7,
Land Court Consolidation No. 216, as set forth by Land Court Order no. 169548; and
WHEREAS,Ainakea Makai, LLC conveyed all of its right, title and interest in
and to Lot 14-D to Grantor by Warranty Deed dated August 25, 2010, filed in the Office of the
Assistant Registrar of the State of Hawaii as Document No. 3998286 and duly noted on Transfer
Certificate of Title No. 995,963 ("Property"); and
-2-
WHEREAS, pursuant to the provisions of Hawaii Revised Statutes Section 46-6.5
relating to Public Access,the County of Hawaii has adopted Hawaii County Code Chapter 34
(Public Access), which provides for implementation of public access over private property in
appropriate locations to the ocean, shorelines and mountain areas as applicable, by requiring
dedication of land for such public rights-of-way by fee or easement as a condition precedent to
final subdivision approval or the issuance of a building permit for a multiple-family development
where adequate public access is not already provided, including provisions requiring the County
of Hawaii to be responsible for all improvement costs, liability and maintenance issues; and
WHEREAS, in order to assure that public access is provided within the Property
to and along designated shoreline access areas, the Grantor and the Grantee hereby agree to be
bound by, and to encumber the real property depicted on Exhibit B attached hereto and
incorporated by reference herein, by filing this Grant of Public Access Easement with the Office
of the Assistant Registrar of the Land Court of the State of Hawaii; and
WHEREAS, pursuant to Section A of the April 4, 2002 Settlement Agreement for
Board of Appeals No. 01-28 and Subdivision Application No. 2000-056 (SUB-7776A) of
applicant Surety Kohala Corporation, entered into by and between Surety Kohala Corporation, a
Hawaii corporation, Grantor's predecessor-in-interest, and Grantee, the filing of this Grant of
Public Access Easement with the Bureau of Conveyances of the State of Hawaii and filing with
the Office of the Assistant Registrar of the Land Court of the State of Hawaii shall constitute full
and final compliance with all public access requirements for the lands of the Property of Section
46-6.5, Hawaii Revised Statutes ("HRS"), Chapter 205A, HRS, , Chapters 23 (Subdivision) and
34 (Public Access), Hawaii County Code, and Planning Department Rule 21 relating to Public
Access: Usage, provided however, that if any of the Property tax key parcels identified in Exhibit
B attached hereto are proposed for subdivision or other uses and activities proposed in the
Special Management Area,the County may require further public access over the Property tax
key parcel proposing such uses and activities.
NOW, THEREFORE, Grantor and Grantee agree as follows:
THAT THE Grantor, for and in consideration of the sum of TEN AND NO/100
DOLLARS ($10.00) paid by Grantee,the receipt whereof is hereby acknowledged, and in further
consideration of the covenants and conditions herein contained by Grantee to be observed and
- 3 -
performed, does hereby bargain, sell, assign and grant unto the said Grantee, and its successors
and assigns, a perpetual and nonexclusive right and easement in, upon, through, over, under and
across the Grantor's Property for public access purposes as indicated thereon, including without
limitation, the construction, reconstruction, installation, maintenance, operation, replacement and
repair of improvements constructed for said purposes ("Pedestrian Public Access Easement"), as
follows:
Portion of Easement 11 , being 10-feet wide (containing an area of
28,729 square feet, for pedestrian public access purposes) as
shown on Land Court Consolidation No. 216, Map 5, affecting Lot
14-D, as shown on Land Court Consolidation No. 216, Map 7,
being further identified as a portion of TMK: (3) 5-3-006:027, as
more particularly described in Exhibit A and depicted on Exhibit
B, attached hereto and incorporated by reference herein.
As used herein, the term "pedestrian public access" shall mean and be limited to
uses allowed by the public access usage regulations as provided in Planning Department Rule 21,
Public Access: Usage.
If portions of the Public Access Easement erode away, destroying the Public
Access Easement or making said easement hazardous, the Public Access Easement shall be
relocated to a safe location immediately adjacent to the destroyed portion of the Public Access
Easement. The County of Hawaii shall survey the new Public Access Easement, process a Land
Court petition for the cancellation of the destroyed lateral pedestrian public access easement(s)
and designation of the new lateral pedestrian public access easement(s), and prepare an Amended
Grant of Public Access Easement to be recorded against the Property by the Grantor, or its
successors and assigns. Where the trail does not exist on the ground in the area of the desired
pedestrian public access, Grantor shall have no obligation to make trails.
Nothing in this Grant of Public Access Easement shall amend, qualify or
otherwise limit the following: (1)the liability protections given to the Grantor pursuant to
Chapter 520, HRS, including without limitation the protections afforded in Section 520-4(b),
HRS relating to Landowners' Liability, and (2) liability protections given to the owners or
operators of any business providing recreational activities to the public who obtain voluntary
written release waivers for their patrons pursuant to the provisions of Section 663-1.54, HRS,
relating to Recreational Activity Liability.
-4 -
AND, Grantor and Grantee hereby covenant and agree as follows:
1. The Pedestrian Public Access Easement shall not be officially open to the
public until this Grant of Public Access Easement has been accepted by the County of Hawaii.
The Pedestrian Public Access Easement as described hereinabove may be used by any members
of the public having the right to use such Pedestrian Public Access Easement, subject to, and
upon the following terms and conditions:
(a) Restrictions on Use. The regulation on the use of the Pedestrian Public
Access Easement described above, including activities prohibited within
the public access easement shall be pursuant to Planning Department Rule
21, Public Access: Usage. In addition, public access will be open
generally from sunrise or 6:00 a.m., whichever is earlier,to one-half hour
beyond sunset or 6:30 p.m., whichever is later. Access for night fishing
past 6:30 p.m. shall be allowed for those individuals who are actively
engaged in night fishing activities, and does not include the right to
overnight camping.
(b) Maintenance and Control of the Pedestrian Public Access Easement. The
Grantee shall be solely responsible for maintaining, controlling, insuring
and repairing the Pedestrian Public Access Easement and any and all
improvements constructed upon and/or located within said Pedestrian
Public Access Easement, in a good and safe condition, ordinary wear and
tear excepted. Any improvements constructed or installed upon the
Pedestrian Public Access Easement shall require the prior approval of the
Planning Director. Any and all additional improvements made to the
pedestrian public access or within the Pedestrian Public Access Easement
area shall be maintained by the party responsible for said improvements.
2. The Grantor and Grantee agree that the execution and delivery to the
County of Hawaii by Grantor of this Grant of Public Access Easement shall constitute full and
final compliance with all public access requirements for the lands of the Property of Section
46-6.5, HRS, Chapter 205A, HRS, Chapters 23 (Subdivision) and 34 (Public Access), Hawaii
County Code, and Planning Department Rule 21 relating to Public Access: Usage.
3. The Grantor and Grantee further agree that the use of the Pedestrian Public
Access Easement by the general public for the purposes permitted hereunder constitutes use for
"recreational purposes" within the meaning of the Hawaii Recreational Use Statute, Chapter 520,
HRS.
4. That Grantee and the members of the general public shall not use the
Pedestrian Public Access Easement for any purpose not expressly permitted herein.
- 5 -
5. That if at any time the premises across which the right and easement is
hereby granted, or any part thereof, shall be condemned or taken by any governmental authority,
Grantee shall have the right to claim and recover from the condemning authority, but not from
Grantor, such compensation as is payable for the said right and easement within the public access
easement by Grantee, all of which shall be payable to Grantee.
6. The terms "Grantor" and "Grantee"wherever used herein shall include
Grantor and Grantee and their respective heirs, devisees, personal representatives and assigns
according to the context thereof.
7. All the terms, covenants and conditions of this Grant of Public Access
Easement shall run with the land and shall inure to the benefit of and be binding upon the
successors and assigns of Grantor and the successor and assigns of Grantee to the same extent as
said terms, covenants and conditions inure to the benefit of and are binding upon Grantor and
Grantee, respectively.
8. This writing contains the entire agreement of the parties hereto concerning
the subject matter hereof, and this Grant of Public Access Easement supersedes all other
agreements and understanding (whether oral or written) heretofore or contemporaneously
herewith made by the parties.
9. The parties hereto agree that this instrument may be executed 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, notwithstanding all of
the parties are not signatory to the original or the same counterparts. For all purposes, including
without limitation, recordation, filing and delivery of this instrument, duplicate unexecuted and
unacknowledged pages of the counterparts may be discarded and the remaining pages assembled
as one document.
10. 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.
- 6 -
IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day
and year first above written.
czw.j,Qv)
COUNTY OF HAWAII, a municipal
corporation C • RLES A. AND RSON
_ Trustee of that certain unrecorded
Charles A. Anderson Trust
By 1 dated January 19, 1995
ARRY
Its: Mayor
AGREED AND ACCEPTED: f C:eL✓5
LISA L. ANDERSON
Trustee of that certain unrecorded
By Lisa L. Anderson Trust dated
DUANE KANUHA January 19, 1995
Its Planning Director
Date:
Approved as to Form and Legality
By
Its Deputy Corporation Counsel
Date: /i- ,r--/4..
- 7 -
IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day
and year first above written.
COUNTY OF HAWAII, a municipal
corporation CI-IARLES A. ANDERSON
Trustee of that certain unrecorded
Charles A. Anderson Trust
By dated January 19, 1995
Its: Mayor
AGREED ANI) ACCEPTED: --- -----__.------_-._.
LISA L. ANDERSON
Trustee of that certain unrecorded
Ey_ ______ __-._ ______._ Lisa L. Anderson Trust dated
MICHA` YEE January 19, 1995
Its Planning Director
Date: 46117
Approved as to Form and Legality
By
Its Deputy Corporation Counsel
Date
STATE OF HAWAII )
) ss.
COUNTY OF HAWAII )
On this day 1 0\11 kry\h2Y_ , 2016, before me personally appeared
CHARLES A. ANDERSON, Trustee of that certain unrecorded Charles A. Anderson
Trust dated January 19, 1995, to me known (or proved to me on the basis of satisfactory
evidence) to be the person described in and who executed the foregoing instrument, and
acknowledged to me that he executed the same as his free act and deed, as such Trustee.
OfinibeA 4.5ttLL.A.
pAQ/1 _ Name:
.i < ..••••"•••••.�2 '% Notary Public
. AMBER JOAQUIN
C��►tlr « State of Hawaii Expiration Date:February 21,2020
`1 �' 1bbc'r
'•. AUB%' /. My commission expires:
�,ll�llu�nlll���,„
NOTARY CERTIFICATION STATEMENT
Document Identification or Description: @yayNA- e -P c cQSS
FasizjineM
Document Date: 'ud-vicklkt \\ O
No. of Pages: 'a �� 0O�J'•""q�QGi2
Jurisdiction (in which notarial act is performed): Third Circuit Q: ()TAR}•••.
f 113 JI `�•�' •'�'��
lae I .�P - �.y•••......•••
Signature of to Date of Notarization and i,,i�/ F OF`�A
g Certification 46 \\DZir c3C(4),11U\ (Notary Stamp or Seal)
Printed Name of Noy
STATE OF HAWAII )
) ss.
COUNTY OF HAWAII )
On this 3IC1 day y,LN-n Y , 2016, before me personally
appeared LISA L. ANDERSON, Trustee of that certain unrecorded Lisa L. Anderson
Trust dated January 19, 1995, to me known (or proved to me on the basis of satisfactory
evidence) to be the person described in and who executed the foregoing instrument, and
acknowledged to me that she executed the same as her free act and deed, as such Trustee.
� Q )eA'
�R JOgQ
O ���� Name:
''' ''• Notary Public
�� O'j'ARr 2 State of Hawaii AMBER JOAQUIN
* ° 16-61 * = Expiration Date:February 21,2020
Nj,At1BL1�':`P My commission expires:
/OF
NOTARY CERTIFICATION STATEMENT
Document Identification or Description: e fla Ve 1C Pee
Document Date: �\ 1 -L
0�RJO
No. of Pages: la "AQGs
Jurisdiction (in which notarial act is performed): Third Circuit OTAR j i
16-61 *
`�j�'AUQLtC'r
( 'MI i�9TF..........•.• Q'`\.:
ignature of ary Date of Notarization and ,,////U F IHP\�`�
Certification Statement �1
61.,u vl (Notary Stamp or Seal)
Printed Name of Ncry
STATE OF HAWAI'I )
) ss.
COUNTY OF HAWAI'I )
On JAN 0 9 1017 , before me personally appeared HARRY KIM, to
me personally known, who being by me duly sworn, did say that he is the Mayor of the County
of Hawai'i, a municipal corporation of the State of Hawai'i; that the seal affixed to the foregoing
instrument is the corporate seal of said County of Hawai'i; the foregoing instrument was signed
and sealed on behalf of the County of Hawai'i by authority given to said Mayor of the County of
Hawaii by Section 5-1.3 and 13-13 of the County Charter, County of Hawaii (2000), as
amended; and said HARRY KIM acknowledged said instrument to be the free act and deed of
\,\\\\t\H u t i/!i/
said County of Hawai'i. ���\ p ii,�
a. (ill/L--•
, ,,NbikirgPublic, State of wa 'i
•l' t'd Name: MARTHA A.RODILLAS
'' 'V). commission expires: 312(fitcr
'''`1; ;l10
NOTARY CERTIFICATION STATEMENT
Document Identification or Description:,, Grant of Public Access Easement
Doc. Date: or I01 Undated at time of notarization
`
No. of Pages: 1 5 [including exhibits] -.
?' sJ
Jurisdiction: Third Circ 'ihm/t-h40 3 \p
JAN 092017 ,4
a. �/L ;�
Signature of Notary Date of Notarization and ,\O-s-',$.-
MAK THA A.RODILLAS Certification Statement ,s,,,;`"'�
(Notary Stamp or Seal)
Printed Name of Notary
EXHIBIT A
Portion of Easement 11, containing an area of approximately 28,729 square feet, as shown on
Map 5, Land Court Consolidation No. 216, for pedestrian access purposes, as set out in Land
Court Order No. 179804.
END OF EXHIBIT A
L
WP 51
y d
w i
,,�. ✓. 3 F 'n 1.14.,:
e.
{ v 7 T'
`. ? - _ LAND COURT
si1'_CF.1,,,
h .. i
LAND COURT caaoirtNrra+zrs
pcsrw,. OF u_ucr n
ki f>... s v r
3 v
, .r-- 1
r +1.
F
Jr I,:::,....-i-:, jr
l Y�Y
,HSE r,.�.... ,-� - „.....z • �) hv. _-
t.
6
ry!
1 ,-
t
E r
iL i
L J Ai-.—t;rr-