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HomeMy WebLinkAboutCOM 0741.000 2018-2020 sM�v or k*!r Harry Kim +: •.t David Yamamoto,P.E. Mayor Director �rr'cF'wr..P Roy Takemoto Allan G.Simeon,P.E. Managing Director Deputy Director taunfv of n fu n DEPARTMENT OF PUBLIC WORKS Aupuni Center 101 Pauahi Street,Suite 7 Hilo,Hawaii 96720-4224 (808)961-8321 Fax(808)961-8630 pub]ic_works(c hawai icounty.gov January 22, 2020 Aaron Chung, Council Chair and Members of the Hawaii County Council Hawaii County Council F k 25 Aupuni Street 'z Hilo, Hawaii 96720 Re: Agreement with the State of Hawaii Enclosed is a resolution to enter an intergovernmental right-of-entry agreement with the State of Hawaii Department of Land and Natural Resources (DLNR) for the purposes of clearing existing drainage conduits, debris removal, and maintenance of the same. The Department of Public Works requests that this resolution be waived from the Public Works and Mass Transit Committee and be placed on the February 19, 2020 Council agenda in order to expedite this agreement. If you have any questions,please do not hesitate to contact me at 961-8324. David amam o, P.E. Director Enc. �t°�• LkCn-ate Comm. o. Ref. To: {f l� Ref. Dote JAN. 2 9 2020 County of Hawaii is an Equal Opportunity Provider and Employer. SUZANNE D.CASE DAVID V.IGE .*°�,a8a 'q CHAIRPERSON GOVERNOR OF HAWAII A' '•+ BOARD OF LAND AND NATURAL RESOURCES V." .}• COMMISSION ON WATER RESOURCE MANAGEMENT 3s *?•;•i ROBERT K.MASUDA CIL FIRST OEPUTY ,`•rp M.KALEO MANUEL `fy.gp:itiir�' DEPUTY DIRECTOR WATER AOUATIC RESOURCES STATE OF HAWAII BOATING AND OCEAN RECREATION BUREAU OF CONVEYANCES srDEPARTMENT OF LAND AND NATURAL RESOURCES COMMISSION ON WATER RESOURCE MANAGEMENT 'Ne atHa+�` CONSERVATION AND COASTAL LANDS POST OFFICE BOX 621 CONSERVATION AND RESOURCES ENFORCEMENT ENGINEERING HONOLULU,HAWAII 96809 FORESTRY AND WILDLIFE HISTORIC PRESERVATION April 8, 2019 KAHOOLAWE ISLAND RESERVE COMMISSION LANSTATEPARKS David Yamamoto PSF 19HD-043 County of Hawaii Department of Public Works Highways Division 101 Pauahi Street, Suite 7 Hilo,HI 96720 Subject: Issuance of Right-of-Entry to the County of Hawaii,Department of Public Works for Debris Removal and Maintenance Purposes on Unencumbered State Land Makai of Bayfront Highway located at Waiakea,South Hilo, Hawaii,Tax Map Key(3) 2-2-005:004 & 006; 2-3-001:003; 2-3-002:016; 2-3- 003:001,004,027 and 028 and 2-3-004:014. Dear Mr. Yamamoto: By correspondence dated March 8, 2019 and subsequent communications with staff of the Hawaii District Land Office, you have requested a right-of-entry to the above-referenced State lands for the purpose of clearing existing drainage conduits and debris removal. Further, you are requesting access to maintain this area as needed. Based on the information and materials you have provided, and pursuant to the authority granted me by the Board of Land and Natural Resources at its meeting of June 14, 2013 (Item D- 11), the County of Hawaii, Department of Public Works,its consultants and/or persons acting for or on its behalf, is hereby granted a right-of-entry permit onto portions of State property for the purpose of clearing existing drainage conduits,debris removal and maintenance of the same as needed,in the area indicated on the attached map Exhibit A, subject to the following terms and conditions: 1. This right-of-entry is effective upon our receipt of(i) a copy of this letter countersigned by a duly authorized agent of the County of Hawaii,and (ii) receipt of an acceptable certificate of liability insurance for any consultants and/or persons acting for or on behalf of the County of Hawaii. The termination date of this right-of-entry shall be December 31, 2020, but may be extended upon timely request at the Chairperson's discretion. 2. This right-of-entry extends only to the subject public lands under DLNR's control and ownership. The County of Hawaii, Department of Public Works is solely responsible for obtaining the consent of the owners of adjacent parcels for access over, and any work on, lands not under DLNR's control or ownership, including private lands and public lands under the management control of a County,Federal or State agency other than DLNR. 3. The County of Hawaii shall ensure its consultants, contractors and/or persons acting for or on its behalf shall procure at its own expense, and maintain during the entire period of this right-of-entry, from an insurance company or companies licensed or authorized to do business in the State of Hawaii with an AM Best rating of not less than "A-VIII" or other comparable and equivalent industry rating, a policy or policies of comprehensive public liability insurance or its equivalent, in an amount of at least$1,000,000 for each occurrence and$2,000,000 aggregate, and with coverage terms acceptable to the Chairperson of the Board. The policy or policies of insurance shall name the State of Hawaii as an additional insured and a copy shall be filed with the State of Hawaii, Department of Land and Natural Resources (Department). The insurance shall cover the entire premises, including all buildings,improvements, and grounds and all roadways or sidewalks on or adjacent to the premises in the use or control of the County of Hawaii,its consultants, contractors and/or persons acting for or on its behalf. The County of Hawaii, its consultants, contractors and/or persons acting for or on its behalf shall furnish the Department with a certificate(s) showing the policy(s) to be initially in force, keep certificate(s) on deposit during the entire period and furnish a like certificate(s) upon each renewal of the policy(s). This insurance shall not be cancelled, limited to scope of coverage, or non-renewed until written notice has been given to the Department. The Department shall retain the right at any time to review the coverage, form, and amount of the insurance required. If, in the opinion of the Department, the insurance provisions in this right-of-entry do not provide adequate protection for the Department, the Department may require the County of Hawaii, its consultants,contractors and/or persons acting for or on its behalf to obtain insurance sufficient in coverage, form, and amount to provide adequate protection. The Department's requirements shall be reasonable but be designed to assure protection for and against the kind and extent of the risks which exist at the time a change in insurance is required. The Department shall notify The County of Hawaii, its consultants, contractors and/or persons acting for or on its behalf in writing of changes in the insurance requirements and the County of Hawaii, its consultants, contractors and/or persons acting for or on its behalf shall deposit copies of acceptable insurance policy(s) or certificate(s) thereof, with the Department incorporating the changes within receipt of the notice. The procuring of the required policy(s) of insurance shall not be construed to limit the County of Hawaii, its consultants, contractors and/or persons acting for or on its behalf, liability under this right-of-entry nor to release or relieve the County of Hawaii, its consultants,contractors and/or persons acting for or on its behalf of the indemnification provisions and requirements of this right-of-entry. Notwithstanding the policy(s) of insurance,the County of Hawaii, its consultants, contractors and/or persons acting for or on its behalf shall be obligated for the full and total amount of any damage, injury, or loss caused by the County of Hawaii,its consultants,contractors and/or persons acting for or on its behalf negligence or neglect connected with this right-of-entry. 4. The County of Hawaii, its consultants, contractors and/or persons acting for or on its behalf shall indemnify,defend, and hold the State of Hawaii, Department of Land and Natural Resources harmless from and against any claim or demand for loss, Iiability, or damage, including claims for bodily injury,wrongful death, or property damage, arising out of or resulting from: (1) any act or omission on the part of the County of Hawaii, its consultants, contractors and/or persons acting for or on its behalf relating to the use, occupancy,maintenance, or enjoyment of the right-of-entry area or premises by the County of Hawaii, its consultants, contractors and/or persons acting for or on its behalf; (2) any failure on the part of the County of Hawaii,its consultants, contractors and/or persons acting for or on its behalf to maintain the right-of-entry area or premises and areas adjacent thereto in the use or control of the County of Hawaii, its consultants, contractors and/or persons acting for or on its behalf, and including any accident, fire or nuisance, growing out of or caused by any failure on the part of the County of Hawaii, its consultants,contractors and/or persons acting for or on its behalf to maintain the area or premises in a safe condition; and(3) from and against all actions, suits, damages, and claims by whomsoever brought or made by reason of the non-observance or non- performance of any of the terms, covenants, and conditions of this right-of-entry or the rules, regulations,ordinances, and laws of the federal, state, municipal or county governments by the County of Hawaii, its consultants, contractors and/or persons acting for or on its behalf. 5. The County of Hawaii, its consultants, contractors and/or persons acting for or on its behalf shall not cause or permit the escape, disposal or release of any hazardous materials except as permitted by law. The County of Hawaii, its consultants,contractors and/or persons acting for or on its behalf shall not allow the storage or use of such materials in any manner not sanctioned by law or by the highest standards prevailing in the industry for the storage and use of such materials, nor allow to be brought onto the right-of-entry area or premises any such materials except to use in the ordinary course of business of the County of Hawaii, its consultants, contractors and/or persons acting for or on its behalf, and then only after written notice is given to the State of Hawaii, Department of Land and Natural Resources of the identity of such materials and upon the Department's consent which consent may be withheld at the Department's sole and absolute discretion. If any lender or governmental agency shall ever require testing to ascertain whether or not there has been any release of hazardous materials by the County of Hawaii,its consultants, contractors and/or persons acting for or on its behalf, then the County of Hawaii,its consultants, contractors and/or persons acting for or on its behalf shall be responsible for the cost thereof. In addition, the County of Hawaii,its consultants,contractors and/or persons acting for or on its behalf shall execute affidavits, representations and the like from time to time at the Department's request concerning the County of Hawaii,its consultants,contractors and/or persons acting for or on its behalf best knowledge and belief regarding the presence of hazardous materials on the right-of-entry area or premises placed or released by the County of Hawaii, its consultants, contractors and/or persons acting for or on its behalf. 6. The County of Hawaii, its consultants,contractors and/or persons acting for or on its behalf agree to indemnify, defend and hold the State of Hawaii, Department of Land and Natural Resources harmless, from any damages and claims resulting from the release of hazardous materials on the right-of-entry area or premises occurring while the County of Hawaii, its consultants, contractors and/or persons acting for or on its behalf is/are in possession,or elsewhere if caused by the County of Hawaii,its consultants, contractors and/or persons acting for or on its behalf. These covenants shall survive the expiration or earlier termination of this right-of-entry. For purposes of this right-of-entry, "hazardous material" shall mean any pollutant, toxic substance, hazardous waste,hazardous material, hazardous substance, or oil as defined in or pursuant to the Resource Conservation and Recovery Act, as amended, the Comprehensive Environmental Response, Compensation, and Liability Act, as amended, the Federal Clean Water Act, or any other federal, state, or local environmental law, regulation, ordinance, rule, or by-law, whether existing as of the date hereof, previously enforced, or subsequently enacted. 7. The County of Hawaii, its consultants, contractors and/or persons acting for or on its behalf shall comply with all of the requirements of all municipal, state, and federal authorities and observe all municipal, state and federal laws applicable to the right-of- entry area or premises, now in force or which may be in force. 8. The County of Hawaii, its consultants,contractors and/or persons acting for or on its behalf in the exercise of this right-of-entry shall use appropriate precautions and measures to minimize inconveniences to surrounding residents, landowners, and the public in general. 9. At all times herein, the County of Hawaii, its consultants, contractors and/or persons acting for or on its behalf shall keep the right-of-entry area or premises in a strictly clean, sanitary and orderly condition. 10. The County of Hawaii, its consultants,contractors and/or persons acting for or on its behalf shall be responsible for cleaning and restoring the area or premises to its original condition or a condition satisfactory to the Department of Land and Natural Resources upon completion of the Project. All trash shall be removed from the area or premises. 11. The County of Hawaii, its consultants,contractors and/or persons acting for or on its behalf in the exercise of this right-of-entry, shall be responsible for all expenses, costs and/or fees associated with the work. 12. The County of Hawaii, its consultants,contractors and/or persons acting for or on its behalf shall exercise due care to prevent fires. No open burning of any type shall be permitted on the right-of-entry area and/or the surrounding State lands. 13. The County of Hawaii, its consultants,contractors and/or persons acting for or on its behalf, is aware that there are no public restroom facilities available at the subject location and should make appropriate arrangements as required. 14. The County of Hawaii, its consultants, contractors and/or persons acting for or on its behalf shall supply to Land Division a name and local telephone number of the contact person who can be reached at any time around the clock during the work. 15. In the event any unanticipated sites, historic properties, burial sites as defined in section 6E-2, Hawaii Revised Statutes, or remains such as bone or charcoal deposits,rock or coral alignments, pavings or walls are encountered,the County of Hawaii, its consultants, contractors and/or persons acting for or on its behalf in the exercise of this right-of-entry shall stop work and contact the State Historic Preservation Division in Kapolei at(808) 692-8015 immediately. 16. This right-of-entry or any rights hereunder shall not be sold, assigned, conveyed,leased, let, mortgaged or otherwise transferred or disposed. 17. All disputes or questions arising under this right-of-entry shall be referred to the Chairperson of the Board of Land and Natural Resources for a determination and resolution of the dispute or question. The Chairperson's decision shall be final and binding on the parties herein.This right-of-entry is revocable and terminable at any time for any reason in the sole and absolute discretion of the Chairperson. 18, The Department of Land and Natural Resources, Land Division, reserves the right to impose additional terms and conditions, if deemed necessary while this right-of-entry is in force. Pursuant to the Land Board's delegation of authority to me to issue rights-of-entry, I am authorized to waive rent for rights-of-entry for any government-related project. As your project meets this requirement, I hereby waive the rent. Should you concur with the foregoing terms and conditions,please have an authorized agent of the County of Hawaii acknowledge and return a signed copy of this letter to the Hawaii District Land Office,at 75 Aupuni Street,Room 204,Hilo, Hawaii 96724. If you have any questions,please feel free to call Candace Martin of our Hawaii District Land Office at(808)961-9590. Sincerely, Za uzanne D ase Chairperson RECO ROVAL: f AN 1 6 20-ZO Department of Public Works Date County of Hawaii APPROVED AS TO FORM &LEGALITY: Corporation Counsel Date County of Hawaii COUNTY OF HAWAII By xc: Central File District File Print Name and Title AARON S.Y.CHUNG SUSAN L.K. LEE LOY MAILS MEDEIROS DAVID Chairperson KAREN EOFF ASHLEY L.KIERKIEWICZ MATT KANEALI'l-KLEINFELDER VALERIE T.POINDEXTER Vice Chair HERBERT M."TIM"RICHARDS,III apF*6FF***4" REBECCA VILLEGAS IIAWAI'l COUNTY COUNCIL County ofHawai'i Hawai'i County Building 25 Aupuni Street Hilo,Hawai'i 96720 January 27, 2020 Aaron S.Y. Chung, Council Chair Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 RE: Resolution No. 488-20 A Resolution authorizing the Office of the Mayor to enter into an intergovernmental right-of-entry agreement with the State of Hawaii Department of Land and Natural Resources, pursuant to HRS §46-7, to obtain access to certain State lands makai of Bayfront Highway located at Waidkea, South Hilo, Hawaii, for the purposes of clearing existing drainage conduits, debris removal and maintenance of the same Pursuant to Section 2(g) of Rule 4 of the Rules of Procedure of the Council of the County of Hawaii, this written request is submitted with my approval that the above-referenced matter be waived from the Committee on Public Works and Mass Transit to the full Council for immediate action. In reviewing this matter, timely approval is crucial. It is therefore advantageous that approval is granted and the matter be placed onto the next Council agenda for review. However, in the event this request is denied, for whatever reason, I understand the matter shall be referred to the Committee on Public Works and Mass Transit for placement on its future agenda. Sincerely, Su L. Lo Chai rson Public I(��ai, Qz�iftee on Public Wols and Mass Transit Approve Date/Waive to Council: Disapproved/Date/Refer to PWMTC: Aaron S.Y. Chung, Cocil Chair Aaron S.Y. Chung, Council Chair Hawaii County Council I/Ztl jZ0 Hawaii County Council Hawai'i County is an Equal Opportunity Provider and Employer