HomeMy WebLinkAboutRES 064 Draft 01 2016-2018 o��<v of M, ,
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COUNTY OF HAWAII • • STATE OF HAWAII
'FTE 01•NF,J
RESOLUTION NO. 64 17
RESOLUTION ACCEPTING A GRANT OF PUBLIC ACCESS EASEMENT FROM
THE SURETY KOHALA CORPORATION, FOR VEHICULAR PUBLIC ACCESS
PURPOSES.
BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII.
WHEREAS, the SURETY KOHALA CORPORATION is the owner of the real property
identified by Tax Map Keys: (3) 5-3-007:015 and (3) 5-3-007:016, situated at Hala`ula, Maulili,
Pueke, Kukuiwaluhia, Apuakohau, Halelua and Napapa'a, District of North Kohala, County and
State of Hawaii;
WHEREAS, Tax Map Keys: (3) 5-3-007:015 and (3) 5-3-007:016 are parcels 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 Hawai`i, 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 Hawaii 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, the SURETY KOHALA CORPORATION, the owner of the real property
identified by Tax Map Keys: (3) 5-3-007:015 and(3) 5-3-007:016, situated at Hala`ula, Maulili,
Pueke, Kukuiwaluhia, Apuakohau, Halelua and Napapa`a, District of North Kohala, County and
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State of Hawai`i, is desirous of granting the County of Hawaii the vehicular 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 Hawaii accepts the Grant of Public Access Easement described and delineated in
Exhibit"1" attached hereto, from the SURETY KOHALA CORPORATION.
BE IT FINALLY RESOLVED that the Clerk of the County of Hawaii is directed to
transmit copies of this Resolution to: The Honorable Harry Kim, Mayor of the County of
Hawaii; Michael Yee, Director of the County of Hawaii Planning Department; the Corporation
Counsel for the County of Hawaii; and Steven S.C. Lim, Esq., Carlsmith Ball LLP, 121
Waianuenue Avenue, Hilo, Hawaii 96720.
2017. }
Dated at Hilo , Hawai`i, this 8th day of February ,
INTRODUCED BY:
1Gii,r I l
COU v--•1�i�Y OF HAWAI I
COUNTY COUNCIL ROLL CALL VOTE
County of Hawaii AYES NOES ABS EX
Hilo, Hawaii 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 X
County of Hawaii on February 8, 2017 X
LEE LOY
O'HARA X
ATTEST: POINDEXTER X
RICHARDS X
RUGGLES X
`/ �
Reference: 9 0 0
C-90/Waived FC 0
COUNTY CLERK CHAIRPERSON&PRESIDING OFFICER RESOLUTION NO. 64 17
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LAND COURT REGULAR SYSTEM
Return By Mail 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: SURETY KOHALA CORPORATION,a Hawaii corporation,whose
mailing address is Post Office Box 249,Hawi,Hawaii 96719
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) 5-3-007:015 (portion)
(3)5-3-007:016(portion)
Affects TCT 1,039,191 4840-6755-4057/06-27-14
EXHIBIT 1
GRANT OF PUBLIC ACCESS EASEMENT
THIS GRANT OF PUBLIC ACCESS EASEMENT is made this IQ day of
101 hv101 Y J , 20 11 , by and between SURETY KOHALA CORPORATION, a Hawaii
corporation, whose mailing address is Post Office Box 249, Hawi, Hawaii 96719, 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".
WITNESSETH:
WHEREAS, Grantor is the owner in fee simple of that certain real property
situated at Halaula, Maulili, Pueke, Kukuiwaluhia, Apuakohau, Halelua and Napapaa, District of
North Kohala, County, Island and State of Hawaii, being Lots 2 and 3, under Subdivision No.
07-000683, approved by the County of Hawaii Planning Department on May 4, 2009, also being
Lots 2 and 3, shown on Map 1, Land Court Consolidation No. 222, being further identified as
Tax Map Key Nos.: (3) 5-3-007:015 and 016, respectively (collectively the "Property"); and
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
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applicant Surety Kohala Corporation, entered into by and between Surety Kohala Corporation, a
Hawaii corporation 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
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 vehicular public access purposes as indicated thereon,
including without limitation, the construction, reconstruction, installation, maintenance,
operation, replacement and repair of improvements constructed for said purposes ("Vehicular
Public Access Easement"), as follows:
Easement 10, containing an area of 1.735 acres, for vehicular
public access purposes, as shown on Land Court Consolidation No.
216, Map 4, affecting Lots 2 and 3, as shown on Map 1, Land
Court Consolidation No. 222, as more particularly described in
Exhibit A and depicted on Exhibit B, attached hereto and
incorporated by reference herein.
As used herein, the term "vehicular public access" shall mean and be limited to
use by motorized vehicles as regulated under Planning Department Rule 21-8, together with
pedestrian and any other modes of transport allowed by Planning Department Rule 21, Public
Access: Usage.
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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.
AND, Grantor and Grantee hereby covenant and agree as follows:
1. The Vehicular 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. Once
opened for public use,the Vehicular Public Access Easement as described hereinabove may be
used by any members of the public having the right to use such Vehicular Public Access
Easement, subject to, and upon the following terms and conditions:
(a) Restrictions on Use. The regulation on the use of the Vehicular 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 Vehicular Public Access Easement. The
Grantee shall be solely responsible for maintaining, controlling, insuring
and repairing the Vehicular Public Access Easement and any and all
improvements constructed upon and/or located within said Vehicular
Public Access Easement, in a good and safe condition, ordinary wear and
tear excepted. Any improvements constructed or installed upon the
Vehicular 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 Vehicular Public Access Easement
area shall be maintained by the party responsible for said improvements.
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
-4-
County Code, and Planning Department Rule 21 relating to Public Access:
Usage.
2. The Grantor and Grantee further agree that the use of the Vehicular 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.
3. That Grantee and the members of the general public shall not use the Vehicular
Public Access Easement for any purpose not expressly permitted herein.
That if at any time the premises across which the rights and easements are 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 rights and easements within the public
access easement by Grantee, all of which shall be payable to Grantee.
5. 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.
6. 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.
7. 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.
8. 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
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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.
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 is left intentionally blank; signature page follows]
-6-
IN WITNESS WHEREOF, the parties hereto have executed this instrument on the
day and year first above written.
COUNTY OF HAWAII, a municipal SURETY KOHALA CORPORATION,
corporatio a Hawaii corporation
By HARRY KIM L
By
Its: Mayor MASAHIRO KUME
Its reside t
•
AGREED AND ACCEPTED: By (IV( 1‘10
WILLIAM M. SHONT"LL, III
Its Executive Vice-President
By
DUANE KANUHA
Its Planning Director
Date:
Approved as to Form and Legality
Its Deputy Corporation Counsel
Date: g---/f"--- /6
-7-
IN WITNESS WHEREOF, the parties hereto have executed this instrument on the
day and year first above written.
COUNTY OF HAWAII, a municipal SURETY KOHALA CORPORATION,
corporation a Hawaii corporation
By — -
By - - — —
Its: Mayor MASAHIRO KUME
Its President
AGREED AND ACCEPTED: By
WILLIAM M. SHONTELL, III
Its Executive Vice-President
By /
MI _'HAEI.. .40
Its Planning Director
Date: (� �1__________
Approved as to Form and Legality
B y
Its Deputy Corporation Counsel
Date:
-j-
STATE OF HAWAII )
) ss.
COUNTY OF HAWAII )
On this 2 day of 04TbtE2. , 2016,before me personally
appeared MASAHIRO KUME, to me known, who,being by me duly sworn, did say that he
is the President of SURETY KOHALA CORPORATION, a Hawaii corporation, and that
said instrument was signed in behalf of said corporation by authority of its Board of Directors,
and said MASAHIRO KUME acknowledges said instrument to be the free act and deed of
said corporation.
St
P. FF Name: a}EKnANrJ P FEeNA-ODE4-
�
�:•' Notary Public
Z r1OTARY• n State of Hawaii
* . I 'UBLIC ;
Commission NoMy commission expires: NO. c d 070/7
(5:•.,p9-646./ �
cz
OF
,,,,,, ,,,,
NOTARY CERTIFICATION STATEMENT
Document Identification or Description: Grant of Public Access Easement
Document Date: tiNpy p F17 117E of S/!nJ/m,
No. of Pages: /� N P. FF
Jurisdiction (in which notarial act is performed): Third Circuit •••••. RN
z • NOTARY$:
TAIr.e-,, 03: Avy--. * PUBLIC/6/.704 Commission No. ;
Signature of Notary Date of Yotarization and 89-646
I B—w Certification Statement % y •S''.
1
i#i►r P. FEP-4Pi• �1D1=� (Noffel,)��Q�rl}j► ;Aal)
Printed Name of Notary
STATE OF HAWAII )
ss.
COUNTY OF HAWAII )
On this d day of 0018E42— , 2016, before me personally
appeared WILLIAM M. SHONTELL, III, to me known, who, being by me duly sworn, did
say that he is the Executive Vice-President of SURETY KOHALA CORPORATION, a
Hawaii corporation, and that said instrument was signed in behalf of said corporation by
authority of its Board of Directors, and said WILLIAM M. SHONTELL, III, acknowledges
said instrument to be the free act and deed of said corporation.
.. FFR E fl$f 4
;• �., N�; Name:
Notary Public
ki; CTARY%vi. State of Hawaii
*1.- BLICs.
•
; Commission No. : My p ,�,�J` `a(. G� ao l 7-
commission expires:
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OF I"
•,,,1,,,,,,1‘0,,
NOTARY CERTIFICATION STATEMENT
Document Identification or Description: Grant of Public Access Easement
Document Date: /,woritto FIT 71 hE 8F 5/44/NA.
No. of Pages: /c2 ;/ .P. FE'?
Jurisdiction(in which notarial act is performed): Third Circuit =
STATE OF HAWAI'I )
) ss.
COUNTY OF HAWAI'I )
On SaNI a 11 , 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 dged'dffi
9 ' ,
//�i/
said County of Hawai'i. , '
;• f � eJ;3.4 p'.V
O. Rid'
Notary Public, State of Hawai'i `��
Printed Name: MARTHA A.RODI LI,A5
My commission expires: 51.2(011g \‘.
NOTARY CERTIFICATION STATEMENT
Document Identification or Description: Grant of Public Access Easement
Doc. Date: or K Undated at time of notarization \\\\Oli �
,z0 F, R 0" /iii
No. of Pages: let. [including exhibits] 07,1 Y 1
Jurisdiction: Third Circuit ' ''" 3 7 3 `
glith- SIN- cis a 0 11 .
Signature of Notary Date of Notarization and
MARTHA A.RODILLAS Certification Statement
(Notary' Stamp or Seal)
Printed Name of Notary
EXHIBIT A
Easement 10, containing an area of 1.735 acres, as shown on Map 4, Land Court Consolidation
No. 216, for vehicular access purposes, as set out in Land Court Order No. 180611.
END OF EXHIBIT A
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Easement 10 for vehicular
public access purposes
EXHIBIT B