LF - Reso 04-157
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Resolution No. 04-157 APPROVING THE ACQUISITION OF REAL PROPERTY AT UKUMEHAME, LAHAINA, MAUI, HAWAII WHEREAS, SUGAR WAY, LTD., a Hawaii corporation, JAMES J.C. HAYNES II, also known as JAMES JOHN CRESSWELL HAYNES II, as Trustee of the James J.C. Haynes Trust dated December 22, 3..987, HUGH JEFFREY FARRINGTON, JOHN M. KEAN, and UKUMEHAME QUARRY COMPANY LIMITED PARTNERSHIP, a Hawaii limited partnership, own, all as Tenants in Common (collectively "Seller"), that certain real property located at Ukumehame, Lahaina, Maui, Hawaii, and more particularly identified as Tax Map Key Numbers (2) 4-8-002:009, (2) 4-8-002:028, (2) 4-8- 002:048, (2) 4-8-002:049, (2) 4-8-002:057, (2) 4-8-002:058, (2) 4-8-002:059, (2) 4-8-002:067, (2) 4-8-002:068, (2) 4-8- 002:069, and (2) 4-8-002:070, containing a total area of approximately 100 acres (the "Property"); and WHEREAS, the COUNTY OF MAUI ("County") anticipates that the State of Hawaii will, in future, utilize a portion of the Property to construct a bypass highway; and WHEREAS, County desires to maintain the remainder of the Property as a park; and WHEREAS, County obtained an appraisal dated as of :4)ecember 18, 2003 of the approximately 84.3 aCres of the total 100-acre Property; and I WHEREAS, Seller and the County have executed a Purchase and Sale Agreement and Joint Escrow Instructions ("Agreement"), a copy of which is attached hereto as Exhibit "A", pursuant to which the County will acquire the Property Seller, approximately 84.3 acres by purchase, and qpproximately 15.7 acres as a gift, by way of quitclaim deed; and WHEREAS, pursuant to Section 2 of the Agreement, County agrees to pay Seller $4,000,000; and WHEREAS, Seller has obtained and delivered to Purchaser a preliminary title report dated February 4, 2003 concerning the Property issued by Title Guaranty of Hawaii, Inc.; and Resolution No. 04-157 APPROVING THE ACQUISITION OF REAL PROPERTY AT UKUMEHAME, LAHAINA, MAUI, HAWAII WHEREAS, SUGAR WAY, LTD., a Hawaii corporation, JAMES J.C. HAYNES II, also known as JAMES JOHN CRESSWELL HAYNES II, as Trustee of the James J.C. Haynes Trust dated December 22, 3..987, HUGH JEFFREY FARRINGTON, JOHN M. KEAN, and UKUMEHAME QUARRY COMPANY LIMITED PARTNERSHIP, a Hawaii limited partnership, own, all as Tenants in Common (collectively "Seller"), that certain real property located at Ukumehame, Lahaina, Maui, Hawaii, and more particularly identified as Tax Map Key Numbers (2) 4-8-002:009, (2) 4-8-002:028, (2) 4-8- 002:048, (2) 4-8-002:049, (2) 4-8-002:057, (2) 4-8-002:058, (2) 4-8-002:059, (2) 4-8-002:067, (2) 4-8-002:068, (2) 4-8- 002:069, and (2) 4-8-002:070, containing a total area of approximately 100 acres (the "Property"); and WHEREAS, the COUNTY OF MAUI ("County") anticipates that the State of Hawaii will, in future, utilize a portion of the Property to construct a bypass highway; and WHEREAS, County desires to maintain the remainder of the Property as a park; and WHEREAS, County obtained an appraisal dated as of :4)ecember 18, 2003 of the approximately 84.3 aCres of the total 100-acre Property; and I WHEREAS, Seller and the County have executed a Purchase and Sale Agreement and Joint Escrow Instructions ("Agreement"), a copy of which is attached hereto as Exhibit "A", pursuant to which the County will acquire the Property Seller, approximately 84.3 acres by purchase, and qpproximately 15.7 acres as a gift, by way of quitclaim deed; and WHEREAS, pursuant to Section 2 of the Agreement, County agrees to pay Seller $4,000,000; and WHEREAS, Seller has obtained and delivered to Purchaser a preliminary title report dated February 4, 2003 concerning the Property issued by Title Guaranty of Hawaii, Inc.; and
Transcript of LF - Reso 04-157
Resolution No. 04-157
APPROVING THE ACQUISITION OF REAL PROPERTY AT UKUMEHAME, LAHAINA, MAUI, HAWAII
WHEREAS, SUGAR WAY, LTD., a Hawaii corporation, JAMES J.C. HAYNES II, also known as JAMES JOHN CRESSWELL HAYNES II, as Trustee of the James J.C. Haynes Trust dated December 22, 3..987, HUGH JEFFREY FARRINGTON, JOHN M. KEAN, and UKUMEHAME QUARRY COMPANY LIMITED PARTNERSHIP, a Hawaii limited partnership, own, all as Tenants in Common (collectively "Seller"), that certain real property located at Ukumehame, Lahaina, Maui, Hawaii, and more particularly identified as Tax Map Key Numbers (2) 4-8-002:009, (2) 4-8-002:028, (2) 4-8-002:048, (2) 4-8-002:049, (2) 4-8-002:057, (2) 4-8-002:058, (2) 4-8-002:059, (2) 4-8-002:067, (2) 4-8-002:068, (2) 4-8-002:069, and (2) 4-8-002:070, containing a total area of approximately 100 acres (the "Property"); and
WHEREAS, the COUNTY OF MAUI ("County") anticipates that the State of Hawaii will, in future, utilize a portion of the Property to construct a bypass highway; and
WHEREAS, County desires to maintain the remainder of the Property as a park; and
WHEREAS, County obtained an appraisal dated as of :4)ecember 18, 2003 of the approximately 84.3 aCres of the total 100-acre Property; and
I
WHEREAS, Seller and the County have executed a Purchase and Sale Agreement and Joint Escrow Instructions ("Agreement"), a copy of which is attached hereto as Exhibit "A", pursuant to which the County will acquire the Property ~rom Seller, approximately 84.3 acres by purchase, and qpproximately 15.7 acres as a gift, by way of quitclaim deed; and
WHEREAS, pursuant to Section 2 of the Agreement, County agrees to pay Seller $4,000,000; and
WHEREAS, Seller has obtained and delivered to Purchaser a preliminary title report dated February 4, 2003 concerning the Property issued by Title Guaranty of Hawaii, Inc.; and
Resolution No. 04-157
APPROVING THE ACQUISITION OF REAL PROPERTY AT UKUMEHAME, LAHAINA, MAUI, HAWAII
WHEREAS, SUGAR WAY, LTD., a Hawaii corporation, JAMES J.C. HAYNES II, also known as JAMES JOHN CRESSWELL HAYNES II, as Trustee of the James J.C. Haynes Trust dated December 22, 3..987, HUGH JEFFREY FARRINGTON, JOHN M. KEAN, and UKUMEHAME QUARRY COMPANY LIMITED PARTNERSHIP, a Hawaii limited partnership, own, all as Tenants in Common (collectively "Seller"), that certain real property located at Ukumehame, Lahaina, Maui, Hawaii, and more particularly identified as Tax Map Key Numbers (2) 4-8-002:009, (2) 4-8-002:028, (2) 4-8-002:048, (2) 4-8-002:049, (2) 4-8-002:057, (2) 4-8-002:058, (2) 4-8-002:059, (2) 4-8-002:067, (2) 4-8-002:068, (2) 4-8-002:069, and (2) 4-8-002:070, containing a total area of approximately 100 acres (the "Property"); and
WHEREAS, the COUNTY OF MAUI ("County") anticipates that the State of Hawaii will, in future, utilize a portion of the Property to construct a bypass highway; and
WHEREAS, County desires to maintain the remainder of the Property as a park; and
WHEREAS, County obtained an appraisal dated as of :4)ecember 18, 2003 of the approximately 84.3 aCres of the total 100-acre Property; and
I
WHEREAS, Seller and the County have executed a Purchase and Sale Agreement and Joint Escrow Instructions ("Agreement"), a copy of which is attached hereto as Exhibit "A", pursuant to which the County will acquire the Property ~rom Seller, approximately 84.3 acres by purchase, and qpproximately 15.7 acres as a gift, by way of quitclaim deed; and
WHEREAS, pursuant to Section 2 of the Agreement, County agrees to pay Seller $4,000,000; and
WHEREAS, Seller has obtained and delivered to Purchaser a preliminary title report dated February 4, 2003 concerning the Property issued by Title Guaranty of Hawaii, Inc.; and
Resolution No. 04-157 ------
WHEREAS, the Agreement sets forth that the County is acquiring the Property "as is" and without warranty: and
WHEREAS, Seller owns real property mauka of the Property ("mauka land"): and
WHEREAS, the Property and mauka land comprise an existing twelve-lot subdivision: and
WHEREAS, Sections 3 and 15 of the Agreement provide that an express condition precedent to closing is final approval of Subdivision File Number 4.875, which would consolidate the existing twelve lots and resubdivide the Property from the mauka land in compliance with law: and
WHEREAS, Sections 3 and 15 of the Agreement provide that an additional express condition precedent to closing is final approval of Seller I s proposed 46-lot subdivision mauka of the Property, as described in Subdivision File Number 4.876, consisting of approximately 340 acres, and
WHEREAS, Section 5(a) (ii) of the Agreement sets forth that Seller may terminate the sale of the Property if final approval for Subdivision File Numbers 4.875 and 4.876 is not granted on or before 30 days after Special Management Area approval: and
WHEREAS, based upon the current acreage Seller owns, the maximum number of lots that may be created from the Property and mauka land is 96; and
WHEREAS, Section 15 (a) (ii) of the Agreement provides that Seller will restrict its right to create additional lots and will include in any deeds conveying its 46 lots a prohibition against subdividing further any of the 46 lots: and
WHEREAS, Section 15(a) (iii) of the Agreement provides that Seller has been advised by the County that Seller must obtain a Spec ial Management Area Permi t and prepare and submi t an environmental assessment for the subdivision applications in Subdivision File Numbers 4.875 and 4.876 and the construction of improvements required for said subdivisions; and
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WHEREAS, the Agreement sets forth that the County is acquiring the Property "as is" and without warranty: and
WHEREAS, Seller owns real property mauka of the Property ("mauka land"): and
WHEREAS, the Property and mauka land comprise an existing twelve-lot subdivision: and
WHEREAS, Sections 3 and 15 of the Agreement provide that an express condition precedent to closing is final approval of Subdivision File Number 4.875, which would consolidate the existing twelve lots and resubdivide the Property from the mauka land in compliance with law: and
WHEREAS, Sections 3 and 15 of the Agreement provide that an additional express condition precedent to closing is final approval of Seller I s proposed 46-lot subdivision mauka of the Property, as described in Subdivision File Number 4.876, consisting of approximately 340 acres, and
WHEREAS, Section 5(a) (ii) of the Agreement sets forth that Seller may terminate the sale of the Property if final approval for Subdivision File Numbers 4.875 and 4.876 is not granted on or before 30 days after Special Management Area approval: and
WHEREAS, based upon the current acreage Seller owns, the maximum number of lots that may be created from the Property and mauka land is 96; and
WHEREAS, Section 15 (a) (ii) of the Agreement provides that Seller will restrict its right to create additional lots and will include in any deeds conveying its 46 lots a prohibition against subdividing further any of the 46 lots: and
WHEREAS, Section 15(a) (iii) of the Agreement provides that Seller has been advised by the County that Seller must obtain a Spec ial Management Area Permi t and prepare and submi t an environmental assessment for the subdivision applications in Subdivision File Numbers 4.875 and 4.876 and the construction of improvements required for said subdivisions; and
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WHEREAS, Section 15 (a) (ii) of the Agreement provides that the transfer of rights to the Property shall include Seller's reservation of two rights of way to Seller's proposed 46 lots, with two easements for access and utilities; and
WHEREAS, Section 15 (b) (ii) of the Agreement provides that Seller shall construct to County standards, at Seller's own expense, roads from Honoapiilani Highway to Seller's proposed 46 lots and shall dedicate the roads to the County; and
WHEREAS, Section 15 (b) (i) of the Agreement provides that, at such time that the bypass highway is constructed, the County shall support the provision by the State of Hawaii of a minimum of two non-exclusive perpetual access easements to the bypass highway from Seller's 46 lots; and
WHEREAS, Section 15(g) of the Agreement provides that Seller shall pay and the County shall accept the appropriate park fee calculated at final subdivision approval, in lieu of the park dedication requirement as set forth in Maui County Code Section 18.16.320(C)i and
WHEREAS, Section 15 (a) (i) of the Agreement provides that the portion of the Property to be developed as a park shall never be used for anything other than a park as provided in Maui County Code Section 19.615.020, PK-l Neighborhood Park District, and that no portion of such park shall be illuminated for nighttime use, except for fully shielded downlighting as necessary for safety r access, and parking; and
WHEREAS, Section 11 of the Agreement provides that the County shall indemnify, defend and hold harmless Seller from and against liability resulting from the County's ownership, use, occupancy, or development of the Property and from and against liability resulting from the existence of hazardous materials within the Property from and after the closing of the sale and conveyance of the Property; and
WHEREAS, Section 5 of the Agreement provides that, if closing does not occur on or before July 15 f 2005, the Agreement shall terminate, with Seller retaining all interest accrued on the purchase price held in escrow; and
WHEREAS, Section 13-8, Revised Charter of the County of Maui (1983), as amended, and Maui County Code Sections 3.44.015(C) and 3.56.030 1 authorize the Council to accept
Resolution No. 04-157 --;:;....:........:;::.:::;..:.-
WHEREAS, Section 15 (a) (ii) of the Agreement provides that the transfer of rights to the Property shall include Seller's reservation of two rights of way to Seller's proposed 46 lots, with two easements for access and utilities; and
WHEREAS, Section 15 (b) (ii) of the Agreement provides that Seller shall construct to County standards, at Seller's own expense, roads from Honoapiilani Highway to Seller's proposed 46 lots and shall dedicate the roads to the County; and
WHEREAS, Section 15 (b) (i) of the Agreement provides that, at such time that the bypass highway is constructed, the County shall support the provision by the State of Hawaii of a minimum of two non-exclusive perpetual access easements to the bypass highway from Seller's 46 lots; and
WHEREAS, Section 15(g) of the Agreement provides that Seller shall pay and the County shall accept the appropriate park fee calculated at final subdivision approval, in lieu of the park dedication requirement as set forth in Maui County Code Section 18.16.320(C)i and
WHEREAS, Section 15 (a) (i) of the Agreement provides that the portion of the Property to be developed as a park shall never be used for anything other than a park as provided in Maui County Code Section 19.615.020, PK-l Neighborhood Park District, and that no portion of such park shall be illuminated for nighttime use, except for fully shielded downlighting as necessary for safety r access, and parking; and
WHEREAS, Section 11 of the Agreement provides that the County shall indemnify, defend and hold harmless Seller from and against liability resulting from the County's ownership, use, occupancy, or development of the Property and from and against liability resulting from the existence of hazardous materials within the Property from and after the closing of the sale and conveyance of the Property; and
WHEREAS, Section 5 of the Agreement provides that, if closing does not occur on or before July 15 f 2005, the Agreement shall terminate, with Seller retaining all interest accrued on the purchase price held in escrow; and
WHEREAS, Section 13-8, Revised Charter of the County of Maui (1983), as amended, and Maui County Code Sections 3.44.015(C) and 3.56.030 1 authorize the Council to accept
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gifts and donations of real property on behalf of the County of Maui by passage of a resolution; and
WHEREAS, Maui County Code Section 3.44.015{B}, provides that, in the case of real property with a purchase price that exceeds $100,000, the County Council shall authorize the acquisition by passage of a resolution; and
WHEREAS, the Council finds that acquisition of the Property is in the public interest; now, therefore,
BE IT RESOLVED by the Council of the County of Maui:
1. That, pursuant to Maui County Code Section 3.44.015{B}, the Council hereby approves the acquisition of approximately 84.3 acres of real property for a purchase price of $4,000,000, as set forth in the Agreement; and
2. That, pursuant to Maui County Code Sections 3.44.015(C} and 3.56.030, the Council hereby accepts the gift of six parcels comprising approximately 15.7 acres, as set forth in the Agreement; and
3. That certified transmitted to the Mayor, Seller.
APPROVED AS TO FORM AND LEGALITY:
Deputy COUNTY S:\CLERICAL\KAO\RES\Ukumehame Purchase.wpd
copies of this Resolution be the Director of Finance, and the
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gifts and donations of real property on behalf of the County of Maui by passage of a resolution; and
WHEREAS, Maui County Code Section 3.44.015{B}, provides that, in the case of real property with a purchase price that exceeds $100,000, the County Council shall authorize the acquisition by passage of a resolution; and
WHEREAS, the Council finds that acquisition of the Property is in the public interest; now, therefore,
BE IT RESOLVED by the Council of the County of Maui:
1. That, pursuant to Maui County Code Section 3.44.015{B}, the Council hereby approves the acquisition of approximately 84.3 acres of real property for a purchase price of $4,000,000, as set forth in the Agreement; and
2. That, pursuant to Maui County Code Sections 3.44.015(C} and 3.56.030, the Council hereby accepts the gift of six parcels comprising approximately 15.7 acres, as set forth in the Agreement; and
3. That certified transmitted to the Mayor, Seller.
APPROVED AS TO FORM AND LEGALITY:
Deputy COUNTY S:\CLERICAL\KAO\RES\Ukumehame Purchase.wpd
copies of this Resolution be the Director of Finance, and the
PURCHASE AND SALE AGREEMENT
AND JOINTESCROWINSTRUcnONS
This PURCHASE A~SALE AGREE~~ 'AND .. JOINT ... ESCROW INSTRUCTIONS ("Agreement") IS made as of AUG 2 . - .,2004 (the tlEffectiveDate"),
by and between SUGAR WAY, LTD., a HawaiicoIpOrati()n, as to an undivided 35.29%
interest; JamesJ.C.Haynes II, also known as JAMES JOHN CRESSWELL-HAYNES n,as '. "
TrUstee of the James J.C.Haynes Trust dated December· 22, :1987, as to:an undivided 23.53%
. interest; :HUGH. JEIt'FREY FARRINGTON, as· to an undivided 5~88%interest;JOHNM~ ·KEAN, as to.an undivided 11.77% interest;andUKUME1L\.MEQUARRY 'COMP ANY
LIMITED PARTNERSHIP, a Hawaii limited partnership, astban undivided 23.53% interest; all as Tenants in Common, who maybe contacted through James oR. Judge at 2233 Vineyard
Street, Suite. B, Wailuku, Maui,Hawaii 96793 {coIlectiveIy, "Seller~').and' COUNTY OF
MAUl, apolitical subdivision of the State of HaWaii, whose address is 250 South High Street,
Wailuku, Maui, HawaiJ 96793. ("Purchaser").
1. AGREE1VfENT TO PURCHASE AND SELL.·~PW'Chaserhereby agrees to
purchase from Seller, and Seller hereby agrees to sell and convey to Purchaser, subject to and. in
accordance with the tennsand conditions set forth in this . Agreement, all of Seller' sinterest in . . , ~
certain real property containing one hundred (100) acres of fee simple vacant.lan~ more or less, located at Ukumehame; Lahama, Island and County of Maui,-State of Hawaii, being the property
identified on the Map ofUkumehamepreparedby R.M. Towill Corporation, attached hereto as
EXHIBIT. "1 ", and being more parti~ularly. described ·in . EXHIBIT "2" attached to this ·Agreement,.andincluding all or portions of Tax 'Map Key Nos. (2) 4-8-002: 009.?028, 048,·049,
057, 058, 059,067~ 068, 069 and 070, together with all ofSellei's interest in the rights and
appurtenances pertaining thereto and the iIIlprovements, ifany,located thereon (collectively, the
"Property"). As more particularly described in Section 3, the six (6) parcels with unclear title
shall he transferred to Purchaser by way· cjf a QuitClaim Deed without payment of consideration.
Seller acknowledges and agrees that Purchaser's purchase of the Property must be.in accordance
with, arid issubjectto fulfillment oftbe .requirementsot: MauiCounty Code section 3.44.015, which states in relevant p~:
A. Except as otherwise provided for by law, any acquisition of real
property.by the· County, whether by agreement, purchase,. exchange, gift, devise. , eminent domain or otherwise, shall·. be accomplished by the provisions of this chapter~
EXHIrr ' A • 08/07/04
PURCHASE AND SALE AGREEMENT
AND JOINTESCROWINSTRUcnONS
This PURCHASE A~SALE AGREE~~ 'AND .. JOINT ... ESCROW INSTRUCTIONS ("Agreement") IS made as of AUG 2 . - .,2004 (the tlEffectiveDate"),
by and between SUGAR WAY, LTD., a HawaiicoIpOrati()n, as to an undivided 35.29%
interest; JamesJ.C.Haynes II, also known as JAMES JOHN CRESSWELL-HAYNES n,as '. "
TrUstee of the James J.C.Haynes Trust dated December· 22, :1987, as to:an undivided 23.53%
. interest; :HUGH. JEIt'FREY FARRINGTON, as· to an undivided 5~88%interest;JOHNM~ ·KEAN, as to.an undivided 11.77% interest;andUKUME1L\.MEQUARRY 'COMP ANY
LIMITED PARTNERSHIP, a Hawaii limited partnership, astban undivided 23.53% interest; all as Tenants in Common, who maybe contacted through James oR. Judge at 2233 Vineyard
Street, Suite. B, Wailuku, Maui,Hawaii 96793 {coIlectiveIy, "Seller~').and' COUNTY OF
MAUl, apolitical subdivision of the State of HaWaii, whose address is 250 South High Street,
Wailuku, Maui, HawaiJ 96793. ("Purchaser").
1. AGREE1VfENT TO PURCHASE AND SELL.·~PW'Chaserhereby agrees to
purchase from Seller, and Seller hereby agrees to sell and convey to Purchaser, subject to and. in
accordance with the tennsand conditions set forth in this . Agreement, all of Seller' sinterest in . . , ~
certain real property containing one hundred (100) acres of fee simple vacant.lan~ more or less, located at Ukumehame; Lahama, Island and County of Maui,-State of Hawaii, being the property
identified on the Map ofUkumehamepreparedby R.M. Towill Corporation, attached hereto as
EXHIBIT. "1 ", and being more parti~ularly. described ·in . EXHIBIT "2" attached to this ·Agreement,.andincluding all or portions of Tax 'Map Key Nos. (2) 4-8-002: 009.?028, 048,·049,
057, 058, 059,067~ 068, 069 and 070, together with all ofSellei's interest in the rights and
appurtenances pertaining thereto and the iIIlprovements, ifany,located thereon (collectively, the
"Property"). As more particularly described in Section 3, the six (6) parcels with unclear title
shall he transferred to Purchaser by way· cjf a QuitClaim Deed without payment of consideration.
Seller acknowledges and agrees that Purchaser's purchase of the Property must be.in accordance
with, arid issubjectto fulfillment oftbe .requirementsot: MauiCounty Code section 3.44.015, which states in relevant p~:
A. Except as otherwise provided for by law, any acquisition of real
property.by the· County, whether by agreement, purchase,. exchange, gift, devise. , eminent domain or otherwise, shall·. be accomplished by the provisions of this chapter~
EXHIrr ' A • 08/07/04
B. The director of finance may negotiate for the .purchase of real
property for purposes in the public interest In negotiating the purchase price, the .
director of finance shall obtain an appraisal by a disinterested appraiser contracted
for by the County,. or accept an appraisal furnished by the prospective seller
. which has been reviewed by an appraiser employed bytbe County .. In the case of
real property with the purchase pricetbat exceeds $100,000 the County council
shall . authorize the acquisition by passage of a resolution, approved by its
members; ... C. . The County council may accept gifts or donations of real property
. or anymterestin real prOperty by the passage· of a resolution by a majority of its members.
Seller acknowledges and agrees that Council approval is required for Purchaser's purchase of the
Property .
. 2. PURCHASE PRICE. The purchase price ("Purehase Price") to be paid by
. Purchaser for the Prop,:r1Y shall be FOUR MILLION AND NO/100 DOLLARS ($4,000,000.00), payable as follows: upon the execution of this Agreement, the full amount of the Purchase Price,
. FOUR MILLION AND NOll 00 DOLLARS ($4,OOO,OOO.OO), shall be deposited with Escrow (as
defined in·· Section 4). and held in a fedemlly-insured interest bearing account, with all interest
earned thereon to be credited to Seller. All amotmts payable hereunder shall be paid in United
States dollars by cashier' s or certified check or electronic or wire transfer of immediately
available funds for same day value. Purchaser expressly acknowledges· and agrees that .the
consmnmation of this transaction is not subject to any financing contingency.
3. TITLE. Se~er has obtained and delivered to Purchaser a preliminary title report I .
dated February 4. 2003 {rTitle Report") covering the Property issued by Title Guaranty of
Hawaii, lncorporated. At Closing, Seller and Purchaser shall execute and deliver to each other a
quitclaim deed ("Deed") in the form attached as EXHIBIT "2" to this Agreement, with no title
represC?ntations or warranties whatsoever from Seller, Pmchaseracknowledging that Seller
acquired the Property by quitclaim deed. In this connection. Purchaser acknowledges that six (6)
parcels containing approximately 15.7 acres mayhave unclear title. Purchaser shall accept a
conveyance of such parcels by way of a Quitclaim Deed and acknowledges that Seller makes no representations or wananties regarding title to such parcels; Purchaser, instead. relying on title
insurance to satisfy Purchaser's concerns, if any. regarding such title.
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B. The director of finance may negotiate for the .purchase of real
property for purposes in the public interest In negotiating the purchase price, the .
director of finance shall obtain an appraisal by a disinterested appraiser contracted
for by the County,. or accept an appraisal furnished by the prospective seller
. which has been reviewed by an appraiser employed bytbe County .. In the case of
real property with the purchase pricetbat exceeds $100,000 the County council
shall . authorize the acquisition by passage of a resolution, approved by its
members; ... C. . The County council may accept gifts or donations of real property
. or anymterestin real prOperty by the passage· of a resolution by a majority of its members.
Seller acknowledges and agrees that Council approval is required for Purchaser's purchase of the
Property .
. 2. PURCHASE PRICE. The purchase price ("Purehase Price") to be paid by
. Purchaser for the Prop,:r1Y shall be FOUR MILLION AND NO/100 DOLLARS ($4,000,000.00), payable as follows: upon the execution of this Agreement, the full amount of the Purchase Price,
. FOUR MILLION AND NOll 00 DOLLARS ($4,OOO,OOO.OO), shall be deposited with Escrow (as
defined in·· Section 4). and held in a fedemlly-insured interest bearing account, with all interest
earned thereon to be credited to Seller. All amotmts payable hereunder shall be paid in United
States dollars by cashier' s or certified check or electronic or wire transfer of immediately
available funds for same day value. Purchaser expressly acknowledges· and agrees that .the
consmnmation of this transaction is not subject to any financing contingency.
3. TITLE. Se~er has obtained and delivered to Purchaser a preliminary title report I .
dated February 4. 2003 {rTitle Report") covering the Property issued by Title Guaranty of
Hawaii, lncorporated. At Closing, Seller and Purchaser shall execute and deliver to each other a
quitclaim deed ("Deed") in the form attached as EXHIBIT "2" to this Agreement, with no title
represC?ntations or warranties whatsoever from Seller, Pmchaseracknowledging that Seller
acquired the Property by quitclaim deed. In this connection. Purchaser acknowledges that six (6)
parcels containing approximately 15.7 acres mayhave unclear title. Purchaser shall accept a
conveyance of such parcels by way of a Quitclaim Deed and acknowledges that Seller makes no representations or wananties regarding title to such parcels; Purchaser, instead. relying on title
insurance to satisfy Purchaser's concerns, if any. regarding such title.
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Seller and Purchaser hereto. explicitly understand and acknowledge' that Seller proposes
·to subdivide the Property and .tbat,pursuantto tbis Agreement, 1he.County shall glan~final subdivision for the consolidation and re .. subdivision of the existing twelve (12) lots into 48 lots
owned by Seller, contingent upon Sellets satisfaction of the sUbdivision requirements· set forth in Title·18,.MauiCounty Code.· One.or more.ofthelotssballbeCODveyed to the County, asset
.forthin Section 15; Thepartiesfurtherundersrand that Maui County Code Section 18;04.020(B)
forbids theofier or sale of un-subdivided lots until a final subdivi~on map for the same has been .
. approved and, pursuant to the decision of the Hawaii Supreme COurt in Whitlow v ~ Jetylings, 40 - .
. Haw. 523'(1954),agreethat this Agreement to sell and to. purchase is made upon the express
condition that the "agreement by SeUer ·to sell the Property.and the . agreement by Purcl1aserto purchase the Property shall be of no force and effect unless and until the existing twelve lots are properly and finally consolidatedandresubdivided assetforth.herein and in· Section 15; and in
accordancemth applicable ordiriance and law.
4. ESCROW.
(a) Opening~ ImmediatelY1l:pon the' Effective Date, . Seller and Purchaser' shall open
an .escrow account with TItle Guaranty Escrow Services, 'Inc., 235 Queen Street, . 1st· Floor, Honolulu, Hawaii96813~ Attention: Barbara Paulo. ("Escrow"), for the purchase .and sale ·ofthe Property pmsuant toWs Agreement.:Delivery to· Escrow. of a fully executed copy of this Agreement, together with the Purchase Price, shall constitute the opening of Escrow.
This Agreement shall constitute joint escrow instructions to Escrow. Seller and Purchaser agree to execute such additional instructions 'not inconsistent with this Agreement which may' be required .byEscrow.Seller and Purchaser agree that, as between Seller and
Purchaser, if there is any conflict between the terms of this Agreement andthl: provisions orany .additional escrow instructions.required by Escrow;.tbetertnsof this' Agreement·.shall control.
(b) Cancellation. If Escrow fails to close due to Seller's default, Seller shall pay all
Escrow' Cancellation Charges (as defined below). If Escrow fails to close due to (i) Purchaser's default or (ii) tennination pursuant to Section 5(a)(iv)' Seller and Purchaser shall pay equally all
Escrow Cancellation Charges; Except in the case ofSeUer'.s'default, all·interest accrued on the amount deposited with Escrow shall be paid to Seller. As used herein, thetenn "Escrow Cancellation Charges"means.all fees, charges and .expenses incurred.or charged by Escrow, i~cludingall expenses incurred orcbarged in connection with issuance of the title report and other title matters. Nothing contained in this Section 4(b}'is intended to limit either Seller or Purchaser from exercising the remedies available upon defa':rlt as set fbrtliin this Agreement.
3 08/07104
Seller and Purchaser hereto. explicitly understand and acknowledge' that Seller proposes
·to subdivide the Property and .tbat,pursuantto tbis Agreement, 1he.County shall glan~final subdivision for the consolidation and re .. subdivision of the existing twelve (12) lots into 48 lots
owned by Seller, contingent upon Sellets satisfaction of the sUbdivision requirements· set forth in Title·18,.MauiCounty Code.· One.or more.ofthelotssballbeCODveyed to the County, asset
.forthin Section 15; Thepartiesfurtherundersrand that Maui County Code Section 18;04.020(B)
forbids theofier or sale of un-subdivided lots until a final subdivi~on map for the same has been .
. approved and, pursuant to the decision of the Hawaii Supreme COurt in Whitlow v ~ Jetylings, 40 - .
. Haw. 523'(1954),agreethat this Agreement to sell and to. purchase is made upon the express
condition that the "agreement by SeUer ·to sell the Property.and the . agreement by Purcl1aserto purchase the Property shall be of no force and effect unless and until the existing twelve lots are properly and finally consolidatedandresubdivided assetforth.herein and in· Section 15; and in
accordancemth applicable ordiriance and law.
4. ESCROW.
(a) Opening~ ImmediatelY1l:pon the' Effective Date, . Seller and Purchaser' shall open
an .escrow account with TItle Guaranty Escrow Services, 'Inc., 235 Queen Street, . 1st· Floor, Honolulu, Hawaii96813~ Attention: Barbara Paulo. ("Escrow"), for the purchase .and sale ·ofthe Property pmsuant toWs Agreement.:Delivery to· Escrow. of a fully executed copy of this Agreement, together with the Purchase Price, shall constitute the opening of Escrow.
This Agreement shall constitute joint escrow instructions to Escrow. Seller and Purchaser agree to execute such additional instructions 'not inconsistent with this Agreement which may' be required .byEscrow.Seller and Purchaser agree that, as between Seller and
Purchaser, if there is any conflict between the terms of this Agreement andthl: provisions orany .additional escrow instructions.required by Escrow;.tbetertnsof this' Agreement·.shall control.
(b) Cancellation. If Escrow fails to close due to Seller's default, Seller shall pay all
Escrow' Cancellation Charges (as defined below). If Escrow fails to close due to (i) Purchaser's default or (ii) tennination pursuant to Section 5(a)(iv)' Seller and Purchaser shall pay equally all
Escrow Cancellation Charges; Except in the case ofSeUer'.s'default, all·interest accrued on the amount deposited with Escrow shall be paid to Seller. As used herein, thetenn "Escrow Cancellation Charges"means.all fees, charges and .expenses incurred.or charged by Escrow, i~cludingall expenses incurred orcbarged in connection with issuance of the title report and other title matters. Nothing contained in this Section 4(b}'is intended to limit either Seller or Purchaser from exercising the remedies available upon defa':rlt as set fbrtliin this Agreement.
3 08/07104
5. CLOSING.
(8) Closing Date. As used in this Agreement. the tenn "Closing Date" means the date
the Deed is recorded in the Bureau of Conveyances of the StateofHawaii("Bureau~'). and the
term "'Closing" shall refer to the recordation of the Deed and the.disbursement offunds by
Escrow to Seller as provided in thisAgrcement.The Closing Date shall be a date within 30 days
after Maui CountyCouneiJ ("Councir') approval of this Agreement, subject to satisfaction of the
conditions set forth in Section 5(a)(ii}, but in any event not beyond the ciate sct forth in Section' .
5(a)(ivl. . The parties agree to the following: . '
.-(i) This"Agreementis to be transmitted to the Council.byAugust 31,2004.
(ii) Final· sUbdivision approval shall occur on or before 30 days after SMA
approval for both Bubciivision File No. 4.875 and Subdivision File No. 4.876. In the
event final subdivision approval is not granted on or before 30 days after SMA approval,
Seller may jmmediately terminate this Agreement and proceed pursuant to Section] 6(d).
(iii) [Intentionally Omitted]
. -
(iv) St:IIer and Purchaser agree that if closing does not occur on or before July 15, 2005, this Agreement shall lenninate. In the event ofterrnination, Seller shall retain
all interest accrued on the Purchase Price held in Escrow and shall proceed pursuant to Section 16(d), 111 this connection, Purchaser expressly acknowledges that there will be
no further extension of '1 he July IS, 200Sdeadline for Closing. Purchaser understands
that this is the last extension to extend the Closing Date in .this transaction. Seller shall
have no obligation whatsoever to grant any further extension. The gi3nting of any prior
extensions, ; inciuding the most recent·one set forth in this Agreement, shall not be
construed in any manner toconstitu.te an express or implied acknowledgment that Sener
will grant any other extens;on of the Closing Date. Further, the Closing Date shall not be
extended for Purchaser's failure to close on or before July } 5. 2005 due to causes
allegedlybeyond.Purchaser's control. Purchaser acknowledges that TIME. IS OF THE
ESSENCE in its obligation to close by JulyJ5. 2005. Purchaser's failure to close on or
before July 15. 200S shall give Seller the immediate right to temlinate this Agreement. Under no circumstances will Purchaser do anything to delay, impede, hinder, prevent or
obstruct the cancellation of Escrow, including the initiation of legal, administrative ()r
other proceedings against Seller. including a suit for specific performance, seeking to compel Seller to sell the property to Purchaser.
4 08107/04
5. CLOSING.
(8) Closing Date. As used in this Agreement. the tenn "Closing Date" means the date
the Deed is recorded in the Bureau of Conveyances of the StateofHawaii("Bureau~'). and the
term "'Closing" shall refer to the recordation of the Deed and the.disbursement offunds by
Escrow to Seller as provided in thisAgrcement.The Closing Date shall be a date within 30 days
after Maui CountyCouneiJ ("Councir') approval of this Agreement, subject to satisfaction of the
conditions set forth in Section 5(a)(ii}, but in any event not beyond the ciate sct forth in Section' .
5(a)(ivl. . The parties agree to the following: . '
.-(i) This"Agreementis to be transmitted to the Council.byAugust 31,2004.
(ii) Final· sUbdivision approval shall occur on or before 30 days after SMA
approval for both Bubciivision File No. 4.875 and Subdivision File No. 4.876. In the
event final subdivision approval is not granted on or before 30 days after SMA approval,
Seller may jmmediately terminate this Agreement and proceed pursuant to Section] 6(d).
(iii) [Intentionally Omitted]
. -
(iv) St:IIer and Purchaser agree that if closing does not occur on or before July 15, 2005, this Agreement shall lenninate. In the event ofterrnination, Seller shall retain
all interest accrued on the Purchase Price held in Escrow and shall proceed pursuant to Section 16(d), 111 this connection, Purchaser expressly acknowledges that there will be
no further extension of '1 he July IS, 200Sdeadline for Closing. Purchaser understands
that this is the last extension to extend the Closing Date in .this transaction. Seller shall
have no obligation whatsoever to grant any further extension. The gi3nting of any prior
extensions, ; inciuding the most recent·one set forth in this Agreement, shall not be
construed in any manner toconstitu.te an express or implied acknowledgment that Sener
will grant any other extens;on of the Closing Date. Further, the Closing Date shall not be
extended for Purchaser's failure to close on or before July } 5. 2005 due to causes
allegedlybeyond.Purchaser's control. Purchaser acknowledges that TIME. IS OF THE
ESSENCE in its obligation to close by JulyJ5. 2005. Purchaser's failure to close on or
before July 15. 200S shall give Seller the immediate right to temlinate this Agreement. Under no circumstances will Purchaser do anything to delay, impede, hinder, prevent or
obstruct the cancellation of Escrow, including the initiation of legal, administrative ()r
other proceedings against Seller. including a suit for specific performance, seeking to compel Seller to sell the property to Purchaser.
4 08107/04
,(b) ,Closing Documentation. On or before two (2) business days prior to the Closing
Date, Seller and Purchaser shall ,execute ,and deliver to Escrow' the Deed . and such additional
,documents· and items as may Teasonablybe required to. consuDllllate the transaction pursuant to
this Agreement.
(c) Disbursement Of Purchase Price at Closin~. AtClositig,Escrow shall disburse to
Seller the PUrchase Price less Seller's closing co~Escrow' fees, and prorated items, and shall
record the Deed in the Bureau.
(d) Possession. Purchaser shall be given possession of the 'Property upon recordation
of the Deed.
6. CLOSTNGCOSTS AND PRORATIONS. Except for the respective alt9rney's
fees incurred by Seller .and'Purchaser, which shall·bepaid',by the,parly incurringtbe same
r~lating to the .negotiation, documentation and consummation of tbesaJe and purchase
transaction, Seller shall pay all closing costs and prorations in this transaction as follows:
(a) the cost ofa standard owner's policy :oftitJeinsurance;
(b) the cost of the land surveyoftbe Property;
(c) the conveyance tax payable in connection with the sale of the Property to Purchaser;
,(d) all notary fees;
(e) all Escrow fees;
(1) all recording fees; and
(g) aU real propeny t:lxes on the Property.
7.PlJRCHASER'S ACKNOWLEDGMENTS. By signing this Agreement.
Purchaser acknowlcdges that Purchaser is speeifieally aware of the following items relating to or
potentially affcctingthc I'roperty, and. shall have reviewed and approved the effects thereof on
Purchaser's ownership and intended use and development of the Property:
'5 08/07/04
,(b) ,Closing Documentation. On or before two (2) business days prior to the Closing
Date, Seller and Purchaser shall ,execute ,and deliver to Escrow' the Deed . and such additional
,documents· and items as may Teasonablybe required to. consuDllllate the transaction pursuant to
this Agreement.
(c) Disbursement Of Purchase Price at Closin~. AtClositig,Escrow shall disburse to
Seller the PUrchase Price less Seller's closing co~Escrow' fees, and prorated items, and shall
record the Deed in the Bureau.
(d) Possession. Purchaser shall be given possession of the 'Property upon recordation
of the Deed.
6. CLOSTNGCOSTS AND PRORATIONS. Except for the respective alt9rney's
fees incurred by Seller .and'Purchaser, which shall·bepaid',by the,parly incurringtbe same
r~lating to the .negotiation, documentation and consummation of tbesaJe and purchase
transaction, Seller shall pay all closing costs and prorations in this transaction as follows:
(a) the cost ofa standard owner's policy :oftitJeinsurance;
(b) the cost of the land surveyoftbe Property;
(c) the conveyance tax payable in connection with the sale of the Property to Purchaser;
,(d) all notary fees;
(e) all Escrow fees;
(1) all recording fees; and
(g) aU real propeny t:lxes on the Property.
7.PlJRCHASER'S ACKNOWLEDGMENTS. By signing this Agreement.
Purchaser acknowlcdges that Purchaser is speeifieally aware of the following items relating to or
potentially affcctingthc I'roperty, and. shall have reviewed and approved the effects thereof on
Purchaser's ownership and intended use and development of the Property:
'5 08/07/04
(a) The Propeny is located adjacent to property owned by the State of Hawaii upon
which a rifle shooting range is currently operated.
(b) There is a specific prohibition against the development of commercial marina
facilities on all or any part of the Property until 'December 7. 2004.
Purchaser further acknowledges that with respect to the foregoing items, Seller does not make
any representations or warranties concerning such .matters or the completeness o! accuracy.,'
thereof.
8. SELLER'S USE OFTHE PROPERTY. Seller represents and warrants that it has not engaged in any activities and/oroperalions of any kind on the Property, although it has
allowed certain third parties to plant. cultivate and harvest noni, com and laro. Subject to the
foregoing, Seller further represents and warrants that it has hol made any use; agricultural or otherwise, of the Property at . any time. Seller agrees not to locate any detention or drainage
infrastructure 011 the Property.
9. CONDITION OF PROPERTY "AS IS".
(a) Acknowledgment of Propenv Condition. . Purchaser acknowledges that it is familiar with the Propeny and will have made such independent investigations as Purchaser
deems necessary or appropriate coneerningPurchaser's intended use and development of the Property as a park and bypass. highway (as defined below).
(b) Purchaser Acquiring Property "As Is". Purchaser is relying solely upon its own
inspection, investigation, examination and analyses of the Propeny in entering into this
Agreement and closing the transaction contemplated by this Agreementand is not relying in any way upon any representations, statements, promises, assurances. agreements. warranties, studies.
reports. descriptions, guidelines or other information or material furnished by Seller or its
representatives. whether oral or \\Titten. express or implied. of any nature whatsoever. except for the representations made in Sections 8 and 14(a)of this Agreement. To SeUer'scurrent actual
knowledge, without benefit of independent investigation or inquiry, there arc no recognized environmental conditions on the Property. PURCHASER IS ACQUIRlNG THE PROPERTY "AS IS;' in its state and condition as of Closing, without representation or warranty by Seller or
. its representatives as to any matter, except as provided in Sections 8 and 14(a) of .this
Agreement. No patent or latent condition affecting the Property in any way shall affect
Purchaser's obligations hereunder, nor shall any such condition give rise to any right of damage or rescission or any other legal or equitable remedy against Seller. Suchconditiollsmay include,
6 08/07i04
(a) The Propeny is located adjacent to property owned by the State of Hawaii upon
which a rifle shooting range is currently operated.
(b) There is a specific prohibition against the development of commercial marina
facilities on all or any part of the Property until 'December 7. 2004.
Purchaser further acknowledges that with respect to the foregoing items, Seller does not make
any representations or warranties concerning such .matters or the completeness o! accuracy.,'
thereof.
8. SELLER'S USE OFTHE PROPERTY. Seller represents and warrants that it has not engaged in any activities and/oroperalions of any kind on the Property, although it has
allowed certain third parties to plant. cultivate and harvest noni, com and laro. Subject to the
foregoing, Seller further represents and warrants that it has hol made any use; agricultural or otherwise, of the Property at . any time. Seller agrees not to locate any detention or drainage
infrastructure 011 the Property.
9. CONDITION OF PROPERTY "AS IS".
(a) Acknowledgment of Propenv Condition. . Purchaser acknowledges that it is familiar with the Propeny and will have made such independent investigations as Purchaser
deems necessary or appropriate coneerningPurchaser's intended use and development of the Property as a park and bypass. highway (as defined below).
(b) Purchaser Acquiring Property "As Is". Purchaser is relying solely upon its own
inspection, investigation, examination and analyses of the Propeny in entering into this
Agreement and closing the transaction contemplated by this Agreementand is not relying in any way upon any representations, statements, promises, assurances. agreements. warranties, studies.
reports. descriptions, guidelines or other information or material furnished by Seller or its
representatives. whether oral or \\Titten. express or implied. of any nature whatsoever. except for the representations made in Sections 8 and 14(a)of this Agreement. To SeUer'scurrent actual
knowledge, without benefit of independent investigation or inquiry, there arc no recognized environmental conditions on the Property. PURCHASER IS ACQUIRlNG THE PROPERTY "AS IS;' in its state and condition as of Closing, without representation or warranty by Seller or
. its representatives as to any matter, except as provided in Sections 8 and 14(a) of .this
Agreement. No patent or latent condition affecting the Property in any way shall affect
Purchaser's obligations hereunder, nor shall any such condition give rise to any right of damage or rescission or any other legal or equitable remedy against Seller. Suchconditiollsmay include,
6 08/07i04
- .
without limitation, the effect of (including non-compliance With) any applicable laws. statutes,
codes, rules. regulations, orciinanccs,pcnnits,' approvals.1imitations,-r-Cstnctions or requirements
conccrning the use, Jocation, construction or suitabiJityfor use.or development of the Property as
a park and for a' bypass highway (coUectively, "the ~Regulations ~).including' but. not "limited to
,zoning, ·land use. general plan, community plan,' subdivision, building; construction, Hazardous
:Materials (as defined below), archeological.~enviTOnmentaI,health or other such Regulations arid
any Regulations, goveming1he diversion, discharge, or runoff ,of, water. 'or ,any other matters .
relating to water use, consumption and development on oraffectjngth~ .Property; the necessity;, .,
or availability of any ,community plan -amendments,rezoning;,zoningwariances, conditional· use
permits.buildingpermits,environmentahimpactstatements, subdivision .maps, and all other governmentaJpc;rmits" approvals or acts >(colleclively~ > the • "Permits"); " the. necessity'and
existence of all dedications, fees, charges, costs or assessmentS which may be imposed by the State of Hawaii andc-any uthergovemmentalor, quasi-govemmentalagencies.or. entities in
connection with the use or' development ofthePropeny as a parkanq for a bypass. highway; the
e,~nomicwaJut:oftht: Property; the size,. dhnensions, location and topo.gT".lphy of the Property,
including its location \~ithin any flood zone, tsunami inundation .zone or designated wetlands
. (this Agreement constituting spe_cifk notice:toPurchaser that portions of the Ptoperty maybe
located in a flood zone or tsunami inundation zone and maybe designated as wetlands); the availability or adequacy of access to the Property. or of water, sewage,electricaJ'or other utilities serving the Property; the presence or adequacy of infrastructure;or Qthet;imprQvements on, near or concerning the Property; the extent .orcondition of any g~ing or other ~he work relating to
the.Propertyor as may be hereafter required' for any future development qf'the Property; any
surface, soil, subsoil. geologic, drainage or gr:oundwater conditions or other physical conditions
and characteristics of Or affecting the Property, such .asaircraftoverflight, traffic~ climate,
drainage, air, water or minerals; the existence on or under the Property ofany"Hazardous
Materials," which, as used in this Agreement, shall in_elude a~y andallsubstimcesregulatedby,
or defined as or included in the definition of "hazardous substances," "hazardous wastes,"
"hazardous materials," or "toxic. substances" under any . and all federal, state or local
environmental, water pollution. hazardous substance. toxic material or waste law, ordinance or
regulalionapplicable to the Property, including, ~ithout limitation. the Comprehensive
Environmental Response Compensation and Liability Act of J 9&0, as an;tended •. 42U.S;C.
Scc~ion 9601 ct seq., the Resource Conservation and Recovery Act, 42 U.s.C. Section 6901, et
seq., the Hazardous Materials Transportati~n Act~ as amended, 49 U.S.C. ~ectjon 9601,et seg.,
the Clean Water Act. 33 U.S.C. Section 1251, etseg., the Toxic Substances Control Act, 15
U.S.C.Sections 2601 through 2629, the Safe Drinking Water Act,42U,S.C. Sections 300f "
through 3001 and the Hawaii Environmental Response Law, ·Hawaii R-evisedStatutes; Chapter
128D, and any amendments thereto and rules promulgated pursuant thereto (collectively, "Hazardous, Materials Laws"); the existence or condition of any surface or underground,
7 08/07/04
- .
without limitation, the effect of (including non-compliance With) any applicable laws. statutes,
codes, rules. regulations, orciinanccs,pcnnits,' approvals.1imitations,-r-Cstnctions or requirements
conccrning the use, Jocation, construction or suitabiJityfor use.or development of the Property as
a park and for a' bypass highway (coUectively, "the ~Regulations ~).including' but. not "limited to
,zoning, ·land use. general plan, community plan,' subdivision, building; construction, Hazardous
:Materials (as defined below), archeological.~enviTOnmentaI,health or other such Regulations arid
any Regulations, goveming1he diversion, discharge, or runoff ,of, water. 'or ,any other matters .
relating to water use, consumption and development on oraffectjngth~ .Property; the necessity;, .,
or availability of any ,community plan -amendments,rezoning;,zoningwariances, conditional· use
permits.buildingpermits,environmentahimpactstatements, subdivision .maps, and all other governmentaJpc;rmits" approvals or acts >(colleclively~ > the • "Permits"); " the. necessity'and
existence of all dedications, fees, charges, costs or assessmentS which may be imposed by the State of Hawaii andc-any uthergovemmentalor, quasi-govemmentalagencies.or. entities in
connection with the use or' development ofthePropeny as a parkanq for a bypass. highway; the
e,~nomicwaJut:oftht: Property; the size,. dhnensions, location and topo.gT".lphy of the Property,
including its location \~ithin any flood zone, tsunami inundation .zone or designated wetlands
. (this Agreement constituting spe_cifk notice:toPurchaser that portions of the Ptoperty maybe
located in a flood zone or tsunami inundation zone and maybe designated as wetlands); the availability or adequacy of access to the Property. or of water, sewage,electricaJ'or other utilities serving the Property; the presence or adequacy of infrastructure;or Qthet;imprQvements on, near or concerning the Property; the extent .orcondition of any g~ing or other ~he work relating to
the.Propertyor as may be hereafter required' for any future development qf'the Property; any
surface, soil, subsoil. geologic, drainage or gr:oundwater conditions or other physical conditions
and characteristics of Or affecting the Property, such .asaircraftoverflight, traffic~ climate,
drainage, air, water or minerals; the existence on or under the Property ofany"Hazardous
Materials," which, as used in this Agreement, shall in_elude a~y andallsubstimcesregulatedby,
or defined as or included in the definition of "hazardous substances," "hazardous wastes,"
"hazardous materials," or "toxic. substances" under any . and all federal, state or local
environmental, water pollution. hazardous substance. toxic material or waste law, ordinance or
regulalionapplicable to the Property, including, ~ithout limitation. the Comprehensive
Environmental Response Compensation and Liability Act of J 9&0, as an;tended •. 42U.S;C.
Scc~ion 9601 ct seq., the Resource Conservation and Recovery Act, 42 U.s.C. Section 6901, et
seq., the Hazardous Materials Transportati~n Act~ as amended, 49 U.S.C. ~ectjon 9601,et seg.,
the Clean Water Act. 33 U.S.C. Section 1251, etseg., the Toxic Substances Control Act, 15
U.S.C.Sections 2601 through 2629, the Safe Drinking Water Act,42U,S.C. Sections 300f "
through 3001 and the Hawaii Environmental Response Law, ·Hawaii R-evisedStatutes; Chapter
128D, and any amendments thereto and rules promulgated pursuant thereto (collectively, "Hazardous, Materials Laws"); the existence or condition of any surface or underground,
7 08/07/04
storage tanks on or under the' Property; and all other mattersconceming the condition, use,
development or sale of the Property. Seller makes no'representation or wananty concerning the
. ,Property or any of the matters described above, except as stated in Sections 8 and 1 4(a)" of this
Agreement. Purchaser covenantsand.agrces that the current'mauka to makai sheetflow of runoff
from any source is acceptable tol)urchaserin all respects. Purchaser acknowledges that the
Property has' been used for and is adjacent to, nearby or in the vicinity of lands which have been
used for the growing, harvesting and processing of sugar cane and other agricultural product<;
(such growing, harvesting and pmcessingactivities ,being -herein conectivelycalJ~d the_
"Agricultural Activities"), which activities have brought upon the Pmpertypr have -resu1ted in
smoke, dust, noise, heat,agricultural chemicals, particulates.and similar substances and
nuisances (collectively, the "Agricultural By-P~oducts"). Purchaser hereby assumes complete
. risk of and forever releases Seller from aU claims for damages (including, but not limited to,
consequenLial, sp~cial, ext:mplary and punitive damages) and nuisances occurring on the
Property and arising ouLof any Agricultural Activities or Agricultural By-Products. Without
limiting the genemlity of the foregoing,Purchaser hereby, with fun knowledge of its rights,
forever: (a) waives any right to require Seller, e:mdreieases Seller from any obligation, to take
any action to correct, modify, alter, eliminate or abate any Agricnlturctl Activities or Ab'licultural
By-Products, and (b)' waives any .right to file any suit or claim Clgai~st Seller for injunction or abatement of nuisances. Purchaser shall indemnify, defend andholdhanriless Seller from and
against all claims, demands, actions, losses, damages, liabilities, costs and expenses, including, without limitation, attorneys' fees, asserted against or incurred by Seller, which arise out of any
injury, death or damage to person, property or business that occurs on the Property after Closing
and is the result of any Agricultural Activities or Agricultural By-Products, irrespective .ofthe
theoJ"1j of liability assened against Seiler. Purchaser hereby agrees' that· any Agricultural
Activities or Agricultural By-Products, and any claim, demand, action, . loss, damage, liability,
cost or expense arising therefrom, shall not constitute a breach of any covenant or warranty of
Seller under this Agreement or be the basis for a suit or other claim for injunction or abatement
of nui~ances. and Purchaser' hereby forever waives any right to file any such suit or claim.
(c) Stream: Other Water. Rights. Without in any manner limiting the generality of
Sections 9(3) and 9(b) above, it is further expressly understood and agreed between Seller and
Purchaser that SeJler makes absolutely no representations or warranties, express or implied, with .
respect to any·water rights (induding the effect of any Regulations or Permits relating thereto)
appertaining to the Property, including thcavailability or amount thereof. or the continuation or
validity of any past or present diversion, usc andlor consumption .of watcr on or affecting the Property, including hut not limited to the stream.
] O. • {Intentionally Omitted]
08/07/04
storage tanks on or under the' Property; and all other mattersconceming the condition, use,
development or sale of the Property. Seller makes no'representation or wananty concerning the
. ,Property or any of the matters described above, except as stated in Sections 8 and 1 4(a)" of this
Agreement. Purchaser covenantsand.agrces that the current'mauka to makai sheetflow of runoff
from any source is acceptable tol)urchaserin all respects. Purchaser acknowledges that the
Property has' been used for and is adjacent to, nearby or in the vicinity of lands which have been
used for the growing, harvesting and processing of sugar cane and other agricultural product<;
(such growing, harvesting and pmcessingactivities ,being -herein conectivelycalJ~d the_
"Agricultural Activities"), which activities have brought upon the Pmpertypr have -resu1ted in
smoke, dust, noise, heat,agricultural chemicals, particulates.and similar substances and
nuisances (collectively, the "Agricultural By-P~oducts"). Purchaser hereby assumes complete
. risk of and forever releases Seller from aU claims for damages (including, but not limited to,
consequenLial, sp~cial, ext:mplary and punitive damages) and nuisances occurring on the
Property and arising ouLof any Agricultural Activities or Agricultural By-Products. Without
limiting the genemlity of the foregoing,Purchaser hereby, with fun knowledge of its rights,
forever: (a) waives any right to require Seller, e:mdreieases Seller from any obligation, to take
any action to correct, modify, alter, eliminate or abate any Agricnlturctl Activities or Ab'licultural
By-Products, and (b)' waives any .right to file any suit or claim Clgai~st Seller for injunction or abatement of nuisances. Purchaser shall indemnify, defend andholdhanriless Seller from and
against all claims, demands, actions, losses, damages, liabilities, costs and expenses, including, without limitation, attorneys' fees, asserted against or incurred by Seller, which arise out of any
injury, death or damage to person, property or business that occurs on the Property after Closing
and is the result of any Agricultural Activities or Agricultural By-Products, irrespective .ofthe
theoJ"1j of liability assened against Seiler. Purchaser hereby agrees' that· any Agricultural
Activities or Agricultural By-Products, and any claim, demand, action, . loss, damage, liability,
cost or expense arising therefrom, shall not constitute a breach of any covenant or warranty of
Seller under this Agreement or be the basis for a suit or other claim for injunction or abatement
of nui~ances. and Purchaser' hereby forever waives any right to file any such suit or claim.
(c) Stream: Other Water. Rights. Without in any manner limiting the generality of
Sections 9(3) and 9(b) above, it is further expressly understood and agreed between Seller and
Purchaser that SeJler makes absolutely no representations or warranties, express or implied, with .
respect to any·water rights (induding the effect of any Regulations or Permits relating thereto)
appertaining to the Property, including thcavailability or amount thereof. or the continuation or
validity of any past or present diversion, usc andlor consumption .of watcr on or affecting the Property, including hut not limited to the stream.
] O. • {Intentionally Omitted]
08/07/04
]LPURCHASERtSINDEMNIFICATION OF SELLER. PurchasershaUindemnify.
defend and hold hannless SeUcrfromand against any and all loss, liability., claim. deman<L damage. action, cause ofaction",suit .. administrative proceedings. penalties andlor eJ.Cpenses, including attorneys' fees, 'asserted against or incurred ,by Seller. resulting from or otherwise
directly or indirectly reJating to Purchaser's ownership, use. occupancy or development of. or
:any other act or neglect by 'Purchaser withrespCct ,to. the Property; "::ror,and in consideration of
the sale:of thePropertybySeJJer to Purcha~er'pursuant to this Agreement. Pmchaser further agreesto and shall indemnify, defend and hold hannless.sellerfrom and against any ar)daJl'I~~s, --'Iiability,claim~ demand,. damage" action, cause of action, suit, adritinistrativeproceedings, penalties -andlor expenses, including attomeys~Jees, asserted against or:,incurredby Seller, resulting or arising from or otherwise directly oc·indirectlyreiating to the presence or existence of Hazardous Materials that areplaced on,under or within the Property or migrating from the Property, from and after Closing. For purposes· of this Section 11, Purchaser shall have the ' burden of establishing that the -presence or ,existence of Hazardous·MaleriaIs afTectingthe P.rpperty occurred prior.to Closing. Purchaser's foregoing indemnificalioDlobligation in favor. of Seller shall surviveC]osiilg.
12. ..USE AND ·DEVELOPMENT OF· PROPERTY BY PURCHASER. Purchaser shall be responsible forobtaining,atits sole cost and expense, a11Pennits(as defined·in Section 2. above) whichrnay from time to time be required forPurchaser:s,use or development of'the Property as a park and for a bypass highway,includingthe payment or other satisfaction of all fees. costs, charges. exactions and other jmpositions in connection with such Permits, and for compliance, atitssole cost and expense, with aU Regulations (as defined in ,Section 9 above)
which may fronl' lime to lime relate orappJy to Purchaser' s use or development of the Property as a park811d f()r a bypass highway. Purchaser further acknowledges and ,agrees .that SeHer assumes no' obligations or responsibilities whatsoever Jor· providing access,; drainage, utilities, public and/or private facilities or any other improvements to or relating to the Property, except as provided by law.
13. SELLER'S FILES AND RECORDS. Seller has provided Purchaser copies of title. reports and archaeological studies relating to the Property. Purchaser acknowledges that Se))er does not makc any rcprcscntations or warraritiesconceming the content.. accuracy .or completeness thereof. Scllcr may also.allow temporary usc by Purchaser of original documents, ifany, in its tiles and records pertaining to the J)roperty. provided that such original documents shallreasonahly be required bya coun ofcompe'tent jurisdiction in connection with J)urchaser's efforts to demonstrate or quiet Purchaser's title to the Property or any part thereof. and shall not then otherwise be required by Seller fQr any reasonable husine~s purpose. Prior to any such use
9 08107104
]LPURCHASERtSINDEMNIFICATION OF SELLER. PurchasershaUindemnify.
defend and hold hannless SeUcrfromand against any and all loss, liability., claim. deman<L damage. action, cause ofaction",suit .. administrative proceedings. penalties andlor eJ.Cpenses, including attorneys' fees, 'asserted against or incurred ,by Seller. resulting from or otherwise
directly or indirectly reJating to Purchaser's ownership, use. occupancy or development of. or
:any other act or neglect by 'Purchaser withrespCct ,to. the Property; "::ror,and in consideration of the sale:of thePropertybySeJJer to Purcha~er'pursuant to this Agreement. Pmchaser further agreesto and shall indemnify, defend and hold hannless.sellerfrom and against any ar)daJl'I~~s, --'Iiability,claim~ demand,. damage" action, cause of action, suit, adritinistrativeproceedings, penalties -andlor expenses, including attomeys~Jees, asserted against or:,incurredby Seller, resulting or arising from or otherwise directly oc·indirectlyreiating to the presence or existence of Hazardous Materials that areplaced on,under or within the Property or migrating from the Property, from and after Closing. For purposes· of this Section 11, Purchaser shall have the '
burden of establishing that the -presence or ,existence of Hazardous·MaleriaIs afTectingthe P.rpperty occurred prior.to Closing. Purchaser's foregoing indemnificalioDlobligation in favor. of Seller shall surviveC]osiilg.
12. ..USE AND ·DEVELOPMENT OF· PROPERTY BY PURCHASER. Purchaser shall be responsible forobtaining,atits sole cost and expense, a11Pennits(as defined·in Section 2. above) whichrnay from time to time be required forPurchaser:s,use or development of'the Property as a park and for a bypass highway,includingthe payment or other satisfaction of all fees. costs, charges. exactions and other jmpositions in connection with such Permits, and for compliance, atitssole cost and expense, with aU Regulations (as defined in ,Section 9 above) which may fronl' lime to lime relate orappJy to Purchaser' s use or development of the Property as a park811d f()r a bypass highway. Purchaser further acknowledges and ,agrees .that SeHer assumes no' obligations or responsibilities whatsoever Jor· providing access,; drainage, utilities, public and/or private facilities or any other improvements to or relating to the Property, except as provided by law.
13. SELLER'S FILES AND RECORDS. Seller has provided Purchaser copies of title. reports and archaeological studies relating to the Property. Purchaser acknowledges that Se))er does not makc any rcprcscntations or warraritiesconceming the content.. accuracy .or completeness thereof. Scllcr may also.allow temporary usc by Purchaser of original documents, ifany, in its tiles and records pertaining to the J)roperty. provided that such original documents shallreasonahly be required bya coun ofcompe'tent jurisdiction in connection with J)urchaser's efforts to demonstrate or quiet Purchaser's title to the Property or any part thereof. and shall not then otherwise be required by Seller fQr any reasonable husine~s purpose. Prior to any such use
9 08107104
of original documents .by ·Purchaser.Purchasershall diligeiltlypursueacceptance of copies
thereof in lieu of the originals.
·14. REPRESENTATIONS AND WARRANTIES.
(a) cSeller's R~resentatjons and Warranties. Seller makes the following
representations and warranties which shall be.trueand correct as of the EfTective Date and as of
the Closing Date:
-,~-
"
(i) . Authorization. Seller has full power and authority to enter into this
Agreement and to perfonn its obligations hereunder.
(ii) . Conflicting Agreements. Neither the execution or delivery of this
Agreement, nor the conslunmatioll of the transactions contemplated herein, will Conflict
with, or result in a breach of:, any contract or undertaking to which SeHer is a party, or
constitute adefa1.I1t. therellnder~
(iii) Proceedings. No lc:gaI or adminiSlrdlive procc:eding is pending or. to
Seller's current actual knowlc:dge, threatened against Seller which would adversely affect
its ability to cunsummatelhe transactions as contemplated in this Agreement.
(b) Purchasc:r's Representations and Warranties. Purchaser makes the following
representations and warranties which shaH be true and correct as of the Effective Date and as of
the Closing Date:
(i) Organization. Purchaser is a municipal corporation and. a duly constituted
political subdivision of the State of Hawaii.
(ii) Authorizatjoll. Purchaser has full power and authority to. enter into this
AI:,'Teement and to perform its obligations hereunder. All required approvals. including
those of the Matii County Councit, the Mayor of Maui County, Department· ofPJanning.
Department of Public Works and Environmental Management, Department of Finance
and Department of the Corporation Counsel. have been or will be obtained prior to
Closing pursuant to the temis of this Agreement. Purchaser. shall submit this Agreement
to the Maui County Council by August 31, 2004 and obtain.final subdivision approval a<; provided in Section5(at '
10 08107104
,"
of original documents .by ·Purchaser.Purchasershall diligeiltlypursueacceptance of copies
thereof in lieu of the originals.
·14. REPRESENTATIONS AND WARRANTIES.
(a) cSeller's R~resentatjons and Warranties. Seller makes the following
representations and warranties which shall be.trueand correct as of the EfTective Date and as of
the Closing Date:
-,~-
"
(i) . Authorization. Seller has full power and authority to enter into this
Agreement and to perfonn its obligations hereunder.
(ii) . Conflicting Agreements. Neither the execution or delivery of this
Agreement, nor the conslunmatioll of the transactions contemplated herein, will Conflict
with, or result in a breach of:, any contract or undertaking to which SeHer is a party, or
constitute adefa1.I1t. therellnder~
(iii) Proceedings. No lc:gaI or adminiSlrdlive procc:eding is pending or. to
Seller's current actual knowlc:dge, threatened against Seller which would adversely affect
its ability to cunsummatelhe transactions as contemplated in this Agreement.
(b) Purchasc:r's Representations and Warranties. Purchaser makes the following
representations and warranties which shaH be true and correct as of the Effective Date and as of
the Closing Date:
(i) Organization. Purchaser is a municipal corporation and. a duly constituted
political subdivision of the State of Hawaii.
(ii) Authorizatjoll. Purchaser has full power and authority to. enter into this
AI:,'Teement and to perform its obligations hereunder. All required approvals. including
those of the Matii County Councit, the Mayor of Maui County, Department· ofPJanning.
Department of Public Works and Environmental Management, Department of Finance
and Department of the Corporation Counsel. have been or will be obtained prior to
Closing pursuant to the temis of this Agreement. Purchaser. shall submit this Agreement
to the Maui County Council by August 31, 2004 and obtain.final subdivision approval a<; provided in Section5(at '
10 08107104
,"
(iii)Conf1ictin~ Agreements. Neither the execution or delivery of this
Agreement. nor the consummation of the transactions contcmplatedherein, win conflict
. with, or result in a breach of, any contract or undertaking to:which Purchaser is a party or
constitute a default thereunder.
(iv) Proceedings. No legal or administrative PTOCeeding .' is. pending or
'threatened against Pwchaser which would adversely afTectits ability to conswnmalethe
transactions as contemplated in this Agreement.
(v) Financing. The Purchase Price has been approved by the Mayor andlor Maui COWlty' Council. and is specificalJyincluded in the relevant budgetfor the County .
of Maui.
15. SPECIAL CONDITIONS. SeUerandPurchaser further agree and underSland as
follows:
'. ( a) Purchaser acknowledges that Seller sublllittedtw() subdivision applications to the
Department ofPubIic Works and Environmental Management; UkumehameSubdivisionPh~el. Subdivision File No. 4.875, and Ukumehame Subdivision PhaseII. Subdivision File No. 4.876.
whiCh together propose a forty-eightlot subdivision .. The'subdivision described in Subdivision File No. 4:875 is a necessary condition precedent for the purchase of the Property by Purchaser. The purpose of the subdivision'described inSubdiyision File No.4~876is to create forty·five,,)ots
and one river corridor lot. The subdivision map for the subdivision described in Subdivision file
No. 4.875 is attached JlsEXHIBfT'!3". The subdivision map for the subdivision described in Subdivision FiIe.No. 4.876 is attached hereto as EXHIBIT "4". Seller's property curreptly
consists of twelve (12) Sllcbdivided lots .. Purchaser. through, an appropriateageneyor department . .
of 'the County of . Maui.shall grant final subdivision approval for theeonsolidation and '. re-
subdivision of the twelve lots into forty-cight]ots. through two (2) separate subdivisipns
. described in SUbdivision File. Numbers 4~875 and 4.876. provided that S.ubdivi~ionFile Numbers
4:875 and 4.876 mcet tJic requirements of 'fitle 18. 'MauiCounty Code. Purchaser agrees,that
final' subdivision approval ll'lustbegranted for ·Subdivision.File Numbers 4;875 and 4.876,
provided that both subdivisions described in Subdivision File Numbers 4.875 and 4.876 meeUhe
requirements of Maui • County Coqe Title lR. In this connection, Putcha .. erexpre~sly acknowledges that the granting of final subdivision approval on both Subdivision File Numbers
4.875 and 4.876 is an express eonditionprecedent to the closing of the sale and purchase
transaction set. fo.rth in this Agreement. The resulting lots of the subdivisiuns shaH be created as
follows:
11 08/07/04 .
(iii)Conf1ictin~ Agreements. Neither the execution or delivery of this
Agreement. nor the consummation of the transactions contcmplatedherein, win conflict
. with, or result in a breach of, any contract or undertaking to:which Purchaser is a party or
constitute a default thereunder.
(iv) Proceedings. No legal or administrative PTOCeeding .' is. pending or
'threatened against Pwchaser which would adversely afTectits ability to conswnmalethe
transactions as contemplated in this Agreement.
(v) Financing. The Purchase Price has been approved by the Mayor andlor Maui COWlty' Council. and is specificalJyincluded in the relevant budgetfor the County .
of Maui.
15. SPECIAL CONDITIONS. SeUerandPurchaser further agree and underSland as
follows:
'. ( a) Purchaser acknowledges that Seller sublllittedtw() subdivision applications to the
Department ofPubIic Works and Environmental Management; UkumehameSubdivisionPh~el. Subdivision File No. 4.875, and Ukumehame Subdivision PhaseII. Subdivision File No. 4.876.
whiCh together propose a forty-eightlot subdivision .. The'subdivision described in Subdivision File No. 4:875 is a necessary condition precedent for the purchase of the Property by Purchaser. The purpose of the subdivision'described inSubdiyision File No.4~876is to create forty·five,,)ots
and one river corridor lot. The subdivision map for the subdivision described in Subdivision file
No. 4.875 is attached JlsEXHIBfT'!3". The subdivision map for the subdivision described in Subdivision FiIe.No. 4.876 is attached hereto as EXHIBIT "4". Seller's property curreptly
consists of twelve (12) Sllcbdivided lots .. Purchaser. through, an appropriateageneyor department . .
of 'the County of . Maui.shall grant final subdivision approval for theeonsolidation and '. re-
subdivision of the twelve lots into forty-cight]ots. through two (2) separate subdivisipns
. described in SUbdivision File. Numbers 4~875 and 4.876. provided that S.ubdivi~ionFile Numbers
4:875 and 4.876 mcet tJic requirements of 'fitle 18. 'MauiCounty Code. Purchaser agrees,that
final' subdivision approval ll'lustbegranted for ·Subdivision.File Numbers 4;875 and 4.876,
provided that both subdivisions described in Subdivision File Numbers 4.875 and 4.876 meeUhe
requirements of Maui • County Coqe Title lR. In this connection, Putcha .. erexpre~sly acknowledges that the granting of final subdivision approval on both Subdivision File Numbers
4.875 and 4.876 is an express eonditionprecedent to the closing of the sale and purchase
transaction set. fo.rth in this Agreement. The resulting lots of the subdivisiuns shaH be created as
follows:
11 08/07/04 .
_ (i) One (1) or more lots consisting of one hundred (IOO) acres shall
constitute the Property to be sold and conveyed by Sell~to Purchaser for use as (A) a park, and (B) a right-of-way, consisting exclusively of a highway .. As used herein,. "park" shall mean an open area, including trees,gmss, restroom facilities, playground equipment and other improvements, specifically and exclusively for the pmposes and uses set forth, at the time of execution of this Agreement, in the Maui County Code, Section 19.615.020 PK-l Neighborhood Park District. The portion ofthePr~pertydeveloped as a park shall never be used for anything othertban a. park, i.e., the same shall not be developed to a . ".
higher,better or mo~intensive use. Purchaser agrees that no portion ,of such park shall be ilhnninated for nighttime use, except for fully shielded downIighting as-necessary for safety, access and parking, The Deed shall contain a restrictive covenant limiting the use of such portion of the Property to a· park and prohibiting the illumination of the park for nighttime use, except for fully shielded downlightingasnecessaryforsafety, access and parking, as shown in EXHIBIT ''2''. The park shall be operated and maintained by PllI'chaser. _The right of way portion of the Property. shall be used asa park until it· has been subdivided and dedicated as a pUQlic road or highway in compliance with all applicable la~, codes, ordinanCes, l'Qles, regulations and other governmental requirements; and
(ii) The.remaining forty-six (46) lots (inclusive of the one (1) river corridor lot, exclusive of roadway lots, utility easement lots, well lots and driveway lots) are approximately shown in EXHIBITS "3" and "4". The transfer of rights to the Property shall include Seller's reservation of two .(2) access rights of way to Seller's 46 lots, together with the two (2) access easements B and E in such locations as shall be
" ,
established in the final approval of Subdivision File No. 4.876. These access rights of way shall extend mauka from the Department of Transportation permitted highway accesses through the Property to Seller's 46 lots.Said-4610ts, based upon current law, will be located outside the current Special Management Area. Unless Chapter 205A, Hawaii Revised S~tutes, Title 19,Maui County Code, and/or the administrative rules of
. the Maui Planning Commission are amended prior to construction upon said 46 lots, an SMA permit. is not required for any lawful use, or for any construction other than the
. '\
construction of improyements required for Subdivision File Numbers 4.875 and 4.876. Seller acknowledges that any determination of whether an SMA major or minor permit is required shall be made pursuant to the law at .the time of development, as set forth in Chapter205A, Hawaii Revised Statutes. Such : lots may be used for all lawful purposes as pemrltted· by current zoning. general plan, cQmmunity plan and properly adopted land use rules and- regulations. Purchaser acknowledges that, pursuant to Maui County Code Section
12 08/07/04
_ (i) One (1) or more lots consisting of one hundred (IOO) acres shall
constitute the Property to be sold and conveyed by Sell~to Purchaser for use as (A) a park, and (B) a right-of-way, consisting exclusively of a highway .. As used herein,. "park" shall mean an open area, including trees,gmss, restroom facilities, playground equipment and other improvements, specifically and exclusively for the pmposes and uses set forth, at the time of execution of this Agreement, in the Maui County Code, Section 19.615.020 PK-l Neighborhood Park District. The portion ofthePr~pertydeveloped as a park shall never be used for anything othertban a. park, i.e., the same shall not be developed to a . ". higher,better or mo~intensive use. Purchaser agrees that no portion ,of such park shall be ilhnninated for nighttime use, except for fully shielded downIighting as-necessary for safety, access and parking, The Deed shall contain a restrictive covenant limiting the use of such portion of the Property to a· park and prohibiting the illumination of the park for nighttime use, except for fully shielded downlightingasnecessaryforsafety, access and parking, as shown in EXHIBIT ''2''. The park shall be operated and maintained by PllI'chaser. _The right of way portion of the Property. shall be used asa park until it· has been subdivided and dedicated as a pUQlic road or highway in compliance with all applicable la~, codes, ordinanCes, l'Qles, regulations and other governmental requirements; and
(ii) The.remaining forty-six (46) lots (inclusive of the one (1) river corridor lot, exclusive of roadway lots, utility easement lots, well lots and driveway lots) are approximately shown in EXHIBITS "3" and "4". The transfer of rights to the Property shall include Seller's reservation of two .(2) access rights of way to Seller's 46 lots, together with the two (2) access easements B and E in such locations as shall be
" ,
established in the final approval of Subdivision File No. 4.876. These access rights of way shall extend mauka from the Department of Transportation permitted highway accesses through the Property to Seller's 46 lots.Said-4610ts, based upon current law, will be located outside the current Special Management Area. Unless Chapter 205A, Hawaii Revised S~tutes, Title 19,Maui County Code, and/or the administrative rules of
. the Maui Planning Commission are amended prior to construction upon said 46 lots, an SMA permit. is not required for any lawful use, or for any construction other than the
. '\
construction of improyements required for Subdivision File Numbers 4.875 and 4.876. Seller acknowledges that any determination of whether an SMA major or minor permit is required shall be made pursuant to the law at .the time of development, as set forth in Chapter205A, Hawaii Revised Statutes. Such : lots may be used for all lawful purposes as pemrltted· by current zoning. general plan, cQmmunity plan and properly adopted land use rules and- regulations. Purchaser acknowledges that, pursuant to Maui County Code Section
12 08/07/04
J930A.030;the maximumnumber,'of lots tbat can be created from SeJler'scurrent lots is
,,96, "arid Putchaserand Seller agree:that Seller shall enter into an "Agreement for
Allocation of Future i Subdivision ·,Potential" . and that SeUerwillallocate, and restrict its
right to create additional lots as follows: Seller agrees thatjt will include in any deeds
conveying any ,such lots a prohibition against subdividing furthetanyof said 46Jots,
exceplthat (1) Seller ,or its assigns may invoke and exerciselhe right to create a
maximum of two· lots outoftheriverconido'r lot, consisting of not less than five (5) acres each; and ,(2) Seller shall relinqUish andwaiveits.deve)opl'!lentrightsto the~
remaining lots. ',Purchaser ,agrees that construetiononthelotsmay .. commence
inimediat~ly uponiss~ance ofagradingpermit~provided thatSellerbas,obtained.all 'o~errequired'pennits, and',approvals. Anythmg 10 the eontrarY herein notwithstanding,
Purchaser expresslyagreesandunderstallds tbat Closillg shall not occur until Purchaser has granted final subdivisiollapprova) withrespec1 to Seller's resubdivision oftlle 12.1ols into 48 16ts. SeHer and 'its consultants ',shaH· continue, to work dosely with· all County of Maui departments . and. agencies , .. having. jurisdiclionlo achieve bonded subdivision·
approval un or before 30 days after SMA approval. Purchaser shall gT"dntfinal subdivision approval,upon Seller's bonding of conditions [or final subdivisionapprovaJ, provided that such c~nditiunsare allowed to .be bonded by the agency which requires such a condition.
(iii) Seller has been advised by Purchaserthal to obtain final approval of the subdivisions described in Subdivision File Numbets 4.875 and4.876. Seller is required to obtain a -Special Management Area Penn it and must prepare and submit an environmental assessment pursuant to Chapter 343,. Hawaii Revised Statutes, for (A) the subdivision applications in Subdivision File Numbers' 4.875 and 4.876 and (B) the
creation of the lots and construction of improvements required for . Subdivision File Numbers 4.875 and 4.876. . Purchaser shalL in accordance with applicable law, and
. provided that Seller submits complete documents and information in connection therewith, cause the Depattment-ofPlanning to diligently and in good faith expedite the
processing of Seller's Special Management Area Pennit ~pplication and the environmental assessmentthrough all required. meetings and/orhearings~
(iv) Irany person orpilrtysubmits to anygovemmental ag~ncy a written objection that 'the agencyrecogni'zesasa propcr challenge. petition or appeal of any
aspect of or basis for the approval, processing or implementation of the concurrent subdivisions or of this Agreement, and such challenge, petition Of appeal does noLreach final resolution within 90 days of assertion. Seller may. exclusive}~ at its own option, withdraw from .this Agreement and retain aU accrued interest on the Purchase Price held
13 08/01104
J930A.030;the maximumnumber,'of lots tbat can be created from SeJler'scurrent lots is
,,96, "arid Putchaserand Seller agree:that Seller shall enter into an "Agreement for
Allocation of Future i Subdivision ·,Potential" . and that SeUerwillallocate, and restrict its
right to create additional lots as follows: Seller agrees thatjt will include in any deeds
conveying any ,such lots a prohibition against subdividing furthetanyof said 46Jots,
exceplthat (1) Seller ,or its assigns may invoke and exerciselhe right to create a
maximum of two· lots outoftheriverconido'r lot, consisting of not less than five (5) acres each; and ,(2) Seller shall relinqUish andwaiveits.deve)opl'!lentrightsto the~
remaining lots. ',Purchaser ,agrees that construetiononthelotsmay .. commence
inimediat~ly uponiss~ance ofagradingpermit~provided thatSellerbas,obtained.all 'o~errequired'pennits, and',approvals. Anythmg 10 the eontrarY herein notwithstanding,
Purchaser expresslyagreesandunderstallds tbat Closillg shall not occur until Purchaser has granted final subdivisiollapprova) withrespec1 to Seller's resubdivision oftlle 12.1ols into 48 16ts. SeHer and 'its consultants ',shaH· continue, to work dosely with· all County of Maui departments . and. agencies , .. having. jurisdiclionlo achieve bonded subdivision·
approval un or before 30 days after SMA approval. Purchaser shall gT"dntfinal subdivision approval,upon Seller's bonding of conditions [or final subdivisionapprovaJ, provided that such c~nditiunsare allowed to .be bonded by the agency which requires such a condition.
(iii) Seller has been advised by Purchaserthal to obtain final approval of the subdivisions described in Subdivision File Numbets 4.875 and4.876. Seller is required to obtain a -Special Management Area Penn it and must prepare and submit an environmental assessment pursuant to Chapter 343,. Hawaii Revised Statutes, for (A) the subdivision applications in Subdivision File Numbers' 4.875 and 4.876 and (B) the
creation of the lots and construction of improvements required for . Subdivision File Numbers 4.875 and 4.876. . Purchaser shalL in accordance with applicable law, and
. provided that Seller submits complete documents and information in connection therewith, cause the Depattment-ofPlanning to diligently and in good faith expedite the
processing of Seller's Special Management Area Pennit ~pplication and the environmental assessmentthrough all required. meetings and/orhearings~
(iv) Irany person orpilrtysubmits to anygovemmental ag~ncy a written objection that 'the agencyrecogni'zesasa propcr challenge. petition or appeal of any
aspect of or basis for the approval, processing or implementation of the concurrent subdivisions or of this Agreement, and such challenge, petition Of appeal does noLreach final resolution within 90 days of assertion. Seller may. exclusive}~ at its own option, withdraw from .this Agreement and retain aU accrued interest on the Purchase Price held
13 08/01104
in Escrow. In such event, without further notice or action by either party,Escrowis hereby
directed to disburse immediately to Seller all such accrued interest..Further, Seller may proceed
HPursuantto Section 16(d)'
(b) 'Pennanent Access.
(i) At such time that Purchaser or its assignee constructs the bypass highway,
Purchaser represents and warrants to.Sellerthat Purchaser shall support the provision ofa
minimum of two (2) non~xclusive peIpetual access e8sements to the b~s highwaY . fro~ Seller'S 46 . lots, constructed in such manner as is· lawfully required to connect to a .
state highwaY"at least one on either.side.ofUkumehame Stream, at locations mutually
agreed to by Purchaser and Seller.1nthis connection. Purchaser shall grant to Seller appropriate non-exclusive perpetual access easements of a minimum width of sixty (60)
feet, in such locations as established in the final approval of SUbdivision.File No. 4.876,
for access, utilities and rights of way over Purchaser's lot for the benefit of Seller's 46
lots, provided that said easements are approved by Council by resolution pursuant to
Section 3.44.020. Maui County Code.
(ii) Seller shall construct the .roads over non-exclusive peIpetual access
easements B and· Eto County standards and shall dedicate the roads· to PUrchaser as
public rights-of-way and Purchaser shall accept the roads, subject to Council approval .
. (iii) Purchaser shall grant to Seller appropriate non-exclusive perpetual easements as reasonably. required by .SeJler and in such locations as established in the
final approval of Subdivision File No. 4.876, for utilities and rights of· way over Purchaser's lot for the benefit of Seller's 46 lots, provided that said easements are approved by Council by resolution pursuant to Section 3.44.020.Maui County Code.
- (c) [Intentionally Omitted]
. (d) Purchaser shall diligently and in good faith process all applications and keep
Seller fully informed at all· stages of the consolidation and resubdivision process, including prelimiruuy subdivision approval, with statement of conditions, and final subdivision approval ..
Seller agrees to use best efforts in good faith to assist and cooperate with Purchaser's eft'ortsto process the subdivisions described in Subdivision File No. 4.875 and Subdivision File No. 4.876.
1.4 01107104
,.-. '"
in Escrow. In such event, without further notice or action by either party,Escrowis hereby directed to disburse immediately to Seller all such accrued interest..Further, Seller may proceed
HPursuantto Section 16(g).
(b) 'Pennanent Access.
(i) At such time that Purchaser or its assignee constructs the bypass highway,
Purchaser represents and warrants to.Sellerthat Purchaser shall support the provision ofa
minimum of two (2) non~xclusive peIpetual access e8sements to the b~s highwaY . fro~ Seller'S 46 . lots, constructed in such manner as is· lawfully required to connect to a .
state highwaY"at least one on either.side.ofUkumehame Stream, at locations mutually agreed to by Purchaser and Seller.1nthis connection. Purchaser shall grant to Seller appropriate non-exclusive perpetual access easements of a minimum width of sixty (60)
feet, in such locations as established in the final approval of SUbdivision.File No. 4.876, for access, utilities and rights of way over Purchaser's lot for the benefit of Seller's 46 lots, provided that said easements are approved by Council by resolution pursuant to Section 3.44.020. Maui County Code.
(ii) Seller shall construct the .roads over non-exclusive peIpetual access easements B and· Eto County standards and shall dedicate the roads· to PUrchaser as
public rights-of-way and Purchaser shall accept the roads, subject to Council approval .
. (iii) Purchaser shall grant to Seller appropriate non-exclusive perpetual easements as reasonably. required by .SeJler and in such locations as established in the final approval of Subdivision File No. 4.876, for utilities and rights of· way over Purchaser's lot for the benefit of Seller's 46 lots, provided that said easements are approved by Council by resolution pursuant to Section 3.44.020.Maui County Code.
- (c) [Intentionally Omitted]
. (d) Purchaser shall diligently and in good faith process all applications and keep Seller fully informed at all· stages of the consolidation and resubdivision process, including prelimiruuy subdivision approval, with statement of conditions, and final subdivision approval .. Seller agrees to use best efforts in good faith to assist and cooperate with Purchaser's eft'ortsto process the subdivisions described in Subdivision File No. 4.875 and Subdivision File No. 4.876.
1.4 01107104
,.-. '"
(e)'. yurehaser shall ·use best efforts 'ingood faith to assist and cooperate with Seller
.andthe State. of Hawaii, in a timely fashion, to obtain allreqnired consents and approvals from
the State of Hawaii, including the DePartment of Health and the Department of TranspOrtation,
regarding (i}tbeproposed 'alignment and other aspects of the bypass highway. (ii) Seller's
interim' access to its existing 12 lots and, after final ,subdivision approval, its forty:-six (46) . lots,
from Honoapillani Highway, and (iii) a minimum oLtwo (2}perpetua1 access easements to and from the bypass highway. with at least one on either sideofUkumehameStre~ at locations
mutually agreed to by Purchaser and Seller.
'(f) '[Intentionally Ontitted] ,
(g) Seller shall pay and Purchaser shall accept the appropriate park fee calcuIatedat
fInal subdivision approval,in lieu of the park dedication requirement as set forth in Maui County
.Code Se.ction 18.l6.320(c).
(h) [Interttionally Omitted]
16. DEFAULT AND REMEDIES; TERMINATION.
(a) Purchaser's Default/Seller's Remedies. In the event ofPurchaser'sdefauIt in the performance of any obligation or .covenantunder this Agreement prior to Closing or which prevents Closing from taking ,place as provided. herein, Seller shall (i) be released from, any obligation to sell or otherwise convey the Property to Purchaser,. (ii) retainall.interest earned from funds held in escrow, and (iii) have all rights and remedies as setforth in Subsection (d)
. ,
below, and as ptovidedat law, in equity or by statute.
(b) Seller's DefaultIPurchaser's Remedies. If Seller defaults .underthis Agreement,
Purchaser, at its election, may {i} ~vail itself of the equitable remedy of specific performance; or (ii) terminate this Agreement by 'written. notice to Seller and receive aretum of .theprincipal
amount orits deposit, with'interest.In either case, Purchaser shall have . the rights set Jorth.in Subsection (d) below. Notwithstanding anything to the contrary contained in this Agreement or
elsewhere, any liability of Seller pursuant to and in connection with this Agreement and the sale of the Property shall be. restricted to Seller's interest in the Property, and no other ..assets of Seller, and no parent, subsidiary, affiliate, owner, stockholder, ditector,officer, partner, trustee or successor trustee of Seller shall have. any personaIliability pursuant to .. or in connection with
. "
this Agreement or.the sale. that is the subject hereof.
15 08/07104
(e)'. yurehaser shall ·use best efforts 'ingood faith to assist and cooperate with Seller
.andthe State. of Hawaii, in a timely fashion, to obtain allreqnired consents and approvals from
the State of Hawaii, including the DePartment of Health and the Department of TranspOrtation,
regarding (i}tbeproposed 'alignment and other aspects of the bypass highway. (ii) Seller's
interim' access to its existing 12 lots and, after final ,subdivision approval, its forty:-six (46) . lots,
from Honoapillani Highway, and (iii) a minimum oLtwo (2}perpetua1 access easements to and from the bypass highway. with at least one on either sideofUkumehameStre~ at locations
mutually agreed to by Purchaser and Seller.
'(f) '[Intentionally Ontitted] ,
(g) Seller shall pay and Purchaser shall accept the appropriate park fee calcuIatedat
fInal subdivision approval,in lieu of the park dedication requirement as set forth in Maui County
.Code Se.ction 18.l6.320(c).
(h) [Interttionally Omitted]
16. DEFAULT AND REMEDIES; TERMINATION.
(a) Purchaser's Default/Seller's Remedies. In the event ofPurchaser'sdefauIt in the performance of any obligation or .covenantunder this Agreement prior to Closing or which prevents Closing from taking ,place as provided. herein, Seller shall (i) be released from, any obligation to sell or otherwise convey the Property to Purchaser,. (ii) retainall.interest earned from funds held in escrow, and (iii) have all rights and remedies as setforth in Subsection (d)
. ,
below, and as ptovidedat law, in equity or by statute.
(b) Seller's DefaultIPurchaser's Remedies. If Seller defaults .underthis Agreement,
Purchaser, at its election, may {i} ~vail itself of the equitable remedy of specific performance; or (ii) terminate this Agreement by 'written. notice to Seller and receive aretum of .theprincipal
amount orits deposit, with'interest.In either case, Purchaser shall have . the rights set Jorth.in Subsection (d) below. Notwithstanding anything to the contrary contained in this Agreement or
elsewhere, any liability of Seller pursuant to and in connection with this Agreement and the sale of the Property shall be. restricted to Seller's interest in the Property, and no other ..assets of Seller, and no parent, subsidiary, affiliate, owner, stockholder, ditector,officer, partner, trustee or successor trustee of Seller shall have. any personaIliability pursuant to .. or in connection with
. "
this Agreement or.the sale. that is the subject hereof.
15 08/07104
(c) Attorneys' Fees and Costs. In any action at law or equity between Seller and
Purchaser occasioned by a default hereunder, the prevailing party shall.'be entitled to collect its reasonable attorney's fees and court costs actually incurred in the action from the non:prevailing
party. If either party, without fault on its part, shall be named as a party in any litigation or other
legal proceeding as a result of thc act or omission of the other party,.such named, party shall be entitled to recover its costs and reasonable attorneys' fees incurred in connection therewith.
(d) Termination. Jfthis Agreement is tenninated by default or election by either of"
the" parties, or terminates pursuant to any other provision hereof, Purchaser· shal); at Seller's
request, continue to process Subdivision File Numbers 4.875 and 4.876, and shall grant fmal approval to said subdivisions, provided that both subdivisions meet the requirements of Maui
County Code Title 18. Seller may revise its "Agreement for Allocation of Future Subdivision Potential" to ,reflect any allocation permitted. by law. Seller may alsoaIllend its subdivision applications to revise the, size and configuration of proposed 'subdivided lots in accordance with
Maui County Codt: sc::ctiun 18.12.070. Purchaser shall impose onJythQse subdivision requirements. that would have been imposed pursuant to· this Agreement. This provision shall
survive any termination of this Agreement.
17. TRANSFER OR ASSIGNMENT OF THIS AGREEMENT. Purchaser shall not voluntarilyor by operation of law assign, sell or transfer any right, interest or obligation under this Agreement, in whole or in part, ,priorto the Closing. Seller shall not sell, assign or transfer
any right, interest or obligation under this Agreement, in whole or in part, prior to the Closing. Seller shall.have the right, after Closing, to assignor transfer its rights, interests or obligations under this Agreement without the consent of Purchaser.
18. TIME OF ESSENCE. Time is of the essence In the parties' observance, performance and discharge of each and every provision of this Agreement.
19. NOTICES. Any nptice, consent, waiver. demand, request or other instrument or
communication to be given to or served upon any party hereto in connection with. this
Agreement must be in writing, and may be given by personal deJive1)', or by certified or
registered mail, return receipt requested, or by facsimile transmission followed by confirming
"hard copy," and shall be deemed to have been given and received upon receipt, in the case of
notiec by personal dclivery. or four (4) calcndardays aftcr a certificdorrcgistered letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail, in the ca~ of notice by mail, or one business day after facsimile transmission. Such notices shaH be given to the.parties hereto at the following addresses:
16 011/07104
(c) Attorneys' Fees and Costs. In any action at law or equity between Seller and
Purchaser occasioned by a default hereunder, the prevailing party shall.'be entitled to collect its reasonable attorney's fees and court costs actually incurred in the action from the non:prevailing
party. If either party, without fault on its part, shall be named as a party in any litigation or other
legal proceeding as a result of thc act or omission of the other party,.such named, party shall be entitled to recover its costs and reasonable attorneys' fees incurred in connection therewith.
(d) Termination. Jfthis Agreement is tenninated by default or election by either of"
the" parties, or terminates pursuant to any other provision hereof, Purchaser· shal); at Seller's
request, continue to process Subdivision File Numbers 4.875 and 4.876, and shall grant fmal approval to said subdivisions, provided that both subdivisions meet the requirements of Maui
County Code Title 18. Seller may revise its "Agreement for Allocation of Future Subdivision Potential" to ,reflect any allocation permitted. by law. Seller may alsoaIllend its subdivision applications to revise the, size and configuration of proposed 'subdivided lots in accordance with
Maui County Codt: sc::ctiun 18.12.070. Purchaser shall impose onJythQse subdivision requirements. that would have been imposed pursuant to· this Agreement. This provision shall
survive any termination of this Agreement.
17. TRANSFER OR ASSIGNMENT OF THIS AGREEMENT. Purchaser shall not voluntarilyor by operation of law assign, sell or transfer any right, interest or obligation under this Agreement, in whole or in part, ,priorto the Closing. Seller shall not sell, assign or transfer
any right, interest or obligation under this Agreement, in whole or in part, prior to the Closing. Seller shall.have the right, after Closing, to assignor transfer its rights, interests or obligations under this Agreement without the consent of Purchaser.
18. TIME OF ESSENCE. Time is of the essence In the parties' observance, performance and discharge of each and every provision of this Agreement.
19. NOTICES. Any nptice, consent, waiver. demand, request or other instrument or
communication to be given to or served upon any party hereto in connection with. this
Agreement must be in writing, and may be given by personal deJive1)', or by certified or
registered mail, return receipt requested, or by facsimile transmission followed by confirming
"hard copy," and shall be deemed to have been given and received upon receipt, in the case of
notiec by personal dclivery. or four (4) calcndardays aftcr a certificdorrcgistered letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail, in the ca~ of notice by mail, or one business day after facsimile transmission. Such notices shaH be given to the.parties hereto at the following addresses:
16 011/07104
If to Seller:
c/oJames R.~udge
2233 Vineyard Street, Suite B
~Wajlul'1l, Maui,Hawaii 96793
. Fax No.: (ROg) 242-4368
With a Copy to:
Brooks Tom Porter&:Quiliquit, LLP . . 2125DaviesPacific Center
841· Bishop Street Honolulu, Hawaii 96813
Attention: Carl Tom, Esq. Fax No.: (808) 526-012]
If to Purchaser:
County of Maui
Department of Public Works and Environmental Management
250. South High Street
Wailuku, Maui. Hawaii 96793
Attention: .Gilben CoIoma-7\g.aran Fax No.: (808) 270-7955
With a Copy to:
Department of the Corporation Counsel
200 South High Street, 91h Floor.
Wailuku,Maui,Hawnii 96793
Attention: Brian T. Moto, Esq.
fax No.: (8U8) 270-7152
Any party hereto may, at any time hy giving five (5) day~' written notice.totheother pany
hereto, designate any other addressor fax number in substitution of or in addition to 'the
foregoing address or. fax number to which such notice shall be given.
17 08/07104
If to Seller:
c/oJames R.~udge
2233 Vineyard Street, Suite B
~Wajlul'1l, Maui,Hawaii 96793
. Fax No.: (ROg) 242-4368
With a Copy to:
Brooks Tom Porter&:Quiliquit, LLP . . 2125DaviesPacific Center
841· Bishop Street Honolulu, Hawaii 96813
Attention: Carl Tom, Esq. Fax No.: (808) 526-012]
If to Purchaser:
County of Maui
Department of Public Works and Environmental Management
250. South High Street
Wailuku, Maui. Hawaii 96793
Attention: .Gilben CoIoma-7\g.aran Fax No.: (808) 270-7955
With a Copy to:
Department of the Corporation Counsel
200 South High Street, 91h Floor.
Wailuku,Maui,Hawnii 96793
Attention: Brian T. Moto, Esq.
fax No.: (8U8) 270-7152
Any party hereto may, at any time hy giving five (5) day~' written notice.totheother pany
hereto, designate any other addressor fax number in substitution of or in addition to 'the
foregoing address or. fax number to which such notice shall be given.
17 08/07104
20. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between Seller and.purchaser relating to the transactions covered by· this Agreement, and all
prior and contemporaneous agreements, representations, negotiations and understandings of
Seller and Purchaser, oral or written, are hereby superseded and merged· herein. No agent,
representative, salesman, or. officer of either. Seller. or Purchaser has any authority to make, or
has made, any statements,agreemen{~, or representations, either onlI or in writing, express or
implied, modifying, adding to, or changing· the terms and conditions of this Agreement, and
neither Seller nor Purchaser has relied upon any representations not set forth in this ~greement ... : No dealings between Seller and Purchaser or custom that shall arise between the parties shaH .be
permitted to contradict, add to, or modify the terms of this Agreement. No waiver or amendment
of the provisions of this Agreement shall be effective unless in writing and signed by both Seller
and Purchaser. This Section 20" shall not be construed or interpreted as affecting the validity of
any instrument executed by SeHer and Purchaser in thefonn of any of the· exhibits attached .to
this Agreement, or as otherwise required to consummate the transaction as contemplated. by this
A-greement.
. 21. SURVIVAL. AU provisions of this Agreement shall survive Closing.
22. NO WAIVER. No waiver by Seller or Purchaser of a breach of any of the tenns,
covenants or conditions of this Agreement by the other shall be construed or held to be a waiver of any succeeding or preceding breach of the same or any other tenn, covenant or condition
contained herein. No waiver of any default by Seller or Purchaser hereunder shall be implied
through any omission by the other to take any action on account of such default if such default
persists or is repeated. and no express waiver shall affect a default other than as specified in such
waiver. The consent or approval by either Seller or Purchaser to or of any act by the other
requiring consent or approval shall not be deemed to waive or render unnecessary the consenting
party's consent or approval to or of any subsequent similar acts.by the other party.
23. COUNTERPARTS. This Agreement may be executed in one or more
counterparts. It shall be fulJy executed when each party whose signature is required has signed at
lea,,!" one counterpart even though no one counterpart contains the signature of all the parties.
Each executed counterpart shall be deemed an original, hut all of which together shall constitute one and the same Agreement.
24. FACSIMILE SIGNATURES. Seller and Purchaser agree that facsimile signatures
on this Agreement and any addemla or olherdocuments related to this Agreement shalL be
binding and effective for all purposes and treated in the same manner as physical signatures. Notwithstanding the foregoing, Seller and Purchaser agree that they wiH promptly forward
18 08/07/04
20. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between Seller and.purchaser relating to the transactions covered by· this Agreement, and all
prior and contemporaneous agreements, representations, negotiations and understandings of
Seller and Purchaser, oral or written, are hereby superseded and merged· herein. No agent,
representative, salesman, or. officer of either. Seller. or Purchaser has any authority to make, or
has made, any statements,agreemen{~, or representations, either onlI or in writing, express or
implied, modifying, adding to, or changing· the terms and conditions of this Agreement, and
neither Seller nor Purchaser has relied upon any representations not set forth in this ~greement ... : No dealings between Seller and Purchaser or custom that shall arise between the parties shaH .be
permitted to contradict, add to, or modify the terms of this Agreement. No waiver or amendment
of the provisions of this Agreement shall be effective unless in writing and signed by both Seller
and Purchaser. This Section 20" shall not be construed or interpreted as affecting the validity of
any instrument executed by SeHer and Purchaser in thefonn of any of the· exhibits attached .to
this Agreement, or as otherwise required to consummate the transaction as contemplated. by this
A-greement.
. 21. SURVIVAL. AU provisions of this Agreement shall survive Closing.
22. NO WAIVER. No waiver by Seller or Purchaser of a breach of any of the tenns,
covenants or conditions of this Agreement by the other shall be construed or held to be a waiver of any succeeding or preceding breach of the same or any other tenn, covenant or condition
contained herein. No waiver of any default by Seller or Purchaser hereunder shall be implied
through any omission by the other to take any action on account of such default if such default
persists or is repeated. and no express waiver shall affect a default other than as specified in such
waiver. The consent or approval by either Seller or Purchaser to or of any act by the other
requiring consent or approval shall not be deemed to waive or render unnecessary the consenting
party's consent or approval to or of any subsequent similar acts.by the other party.
23. COUNTERPARTS. This Agreement may be executed in one or more
counterparts. It shall be fulJy executed when each party whose signature is required has signed at
lea,,!" one counterpart even though no one counterpart contains the signature of all the parties.
Each executed counterpart shall be deemed an original, hut all of which together shall constitute one and the same Agreement.
24. FACSIMILE SIGNATURES. Seller and Purchaser agree that facsimile signatures
on this Agreement and any addemla or olherdocuments related to this Agreement shalL be
binding and effective for all purposes and treated in the same manner as physical signatures. Notwithstanding the foregoing, Seller and Purchaser agree that they wiH promptly forward
18 08/07/04
physically signed copies of this Agreement. and, such other documents to 'Escrow .. However, this
.• :Agreement and. any ,other documents containing facsimil«7 sjgnatures~~shall, remain binding· and
effectiveev~n if the original documents are not received by Escrow. ·.lbe'parties.understand that
tbeyare.required;to . physically , sign . all conveyancedoeuments .. andany other documents for
recordation· purposes.
25.BROKERAGE.SellerandPlD'Chasereaeh represents to the other that each has
not entered into any agreement, incurred any obligation or knows of any facts which might resul~· ...
. in an obl~gationby any partyto.pay a salesorbroketagecommisSionor . finder's .fees, .in connection with thepurchaseand,sale contemplated by this Agreement P~haseragrees to and
shall indemnify and. hold hannless Seller·:fromand .against anY loss, :liabiJity, claim, dellland,
damage, action,. cause of action, . suit and ·expenses,.jncluding reasonabJe.attorneys' fees, asserted
against orincurredby Seller,arisingout of or in any manner relating to the alleged employment,
engagement, or use by'Purchaser of any broker or sales or;inarketing agentin.connection with
the purchase. and sale contemplated by this Agreement ThisSectioD 25,shall bebindingo.n
Purchaser whether or not Closing occurs, and shall survive Closing.
Seller hereby discloses, in accordance with Hawaii law, that JohnM. Kean and James R. Judge each is a licensed real estate broker.
26. PRESS RELEASE:' RETURN OF· DOCUMENTS. ··Ifthe transaction
contemplated herein fails to dosefOT any reason, Purchaser shall return to Seller, at no cost to
SeHer, all title reports, archaeological. studies and any other information, reports and . .studies
obt3ined from SeUer. and Purchaser shall make no further distributions or disclosures of any
such information, reports and studies. Purchaser shall provide to Seller all press releases relating
to Purchaser's purchase of the Property, prior to the release thereof, forrevi'ew bySellet This
Section 26 shal1be binding on Purchaser whether or not Closing. occurs, and shall survive .Closing.
27. FURTHER ASSURANCES. Each of the panies shall execute and deliver all
additional papers, documents and other instruments. and shall do aU acts and things reasonably
necessary in connection with the performance of their respective obligations hereunder tocany
out the intent of this Agreement,.· including processing. responding to, and complying with. subdivision conditions and comments. .'
28. CAPTIONS. Captions given to various sections in this Agreement are for
convenience and reference purposes only and are not intended to and shall not modify or. affect
the meaning, construction or interpretation of any of the substantive provisionshereof.
19 ·08/07104
··~vu :·.fI.J\
physically signed copies of this Agreement. and, such other documents to 'Escrow .. However, this
.• :Agreement and. any ,other documents containing facsimil«7 sjgnatures~~shall, remain binding· and
effectiveev~n if the original documents are not received by Escrow. ·.lbe'parties.understand that
tbeyare.required;to . physically , sign . all conveyancedoeuments .. andany other documents for
recordation· purposes.
25.BROKERAGE.SellerandPlD'Chasereaeh represents to the other that each has
not entered into any agreement, incurred any obligation or knows of any facts which might resul~· ...
. in an obl~gationby any partyto.pay a salesorbroketagecommisSionor . finder's .fees, .in connection with thepurchaseand,sale contemplated by this Agreement P~haseragrees to and
shall indemnify and. hold hannless Seller·:fromand .against anY loss, :liabiJity, claim, dellland,
damage, action,. cause of action, . suit and ·expenses,.jncluding reasonabJe.attorneys' fees, asserted
against orincurredby Seller,arisingout of or in any manner relating to the alleged employment,
engagement, or use by'Purchaser of any broker or sales or;inarketing agentin.connection with
the purchase. and sale contemplated by this Agreement ThisSectioD 25,shall bebindingo.n
Purchaser whether or not Closing occurs, and shall survive Closing.
Seller hereby discloses, in accordance with Hawaii law, that JohnM. Kean and James R. Judge each is a licensed real estate broker.
26. PRESS RELEASE:' RETURN OF· DOCUMENTS. ··Ifthe transaction
contemplated herein fails to dosefOT any reason, Purchaser shall return to Seller, at no cost to
SeHer, all title reports, archaeological. studies and any other information, reports and . .studies
obt3ined from SeUer. and Purchaser shall make no further distributions or disclosures of any
such information, reports and studies. Purchaser shall provide to Seller all press releases relating
to Purchaser's purchase of the Property, prior to the release thereof, forrevi'ew bySellet This
Section 26 shal1be binding on Purchaser whether or not Closing. occurs, and shall survive .Closing.
27. FURTHER ASSURANCES. Each of the panies shall execute and deliver all
additional papers, documents and other instruments. and shall do aU acts and things reasonably
necessary in connection with the performance of their respective obligations hereunder tocany
out the intent of this Agreement,.· including processing. responding to, and complying with. subdivision conditions and comments. .'
28. CAPTIONS. Captions given to various sections in this Agreement are for
convenience and reference purposes only and are not intended to and shall not modify or. affect
the meaning, construction or interpretation of any of the substantive provisionshereof.
19 ·08/07104
··~vu :·.fI.J\
29. APPLICABLE LA w. This Agreement shall begovemed by, and construed in
. accordance with, the laws of the State of Hawaii.
30. . INVOLUNTARY CONVERSION. Seller has been materially induced to sell the
Property to Purchaser by reason of the threat of imminent condemnation of the Property.
31. NO PARTY DEEMED DRAFTER, The parties acknowledge that they have been
represented and advised"bylegalcounsel.oftheir .choice in the negotiation and legal .. etTects of ~_ this Agreement. -The terms and language of this Agreement have been negotiated in depth by the
partics arid their counsel and shaH therefore not be construed either for or against either party.
No negotiations concerning, or modifications made" to, prior drafts of this Agreement or memoranda thereof shall be construed in any.manner to limit, reduce or impair the rights. remedies. duties and obligations of the parties under this Agreement or to restrict the meaning of
any of the provIsions. of this Agreement or to constmc any of the provisions of this Agreement in
~.ther party's favor.
[REMAINDER OFPAGE LEFT BLANK]
20 08/07/04
29. APPLICABLE LA w. This Agreement shall begovemed by, and construed in
. accordance with, the laws of the State of Hawaii.
30. . INVOLUNTARY CONVERSION. Seller has been materially induced to sell the
Property to Purchaser by reason of the threat of imminent condemnation of the Property.
31. NO PARTY DEEMED DRAFTER, The parties acknowledge that they have been
represented and advised"bylegalcounsel.oftheir .choice in the negotiation and legal .. etTects of ~_ this Agreement. -The terms and language of this Agreement have been negotiated in depth by the
partics arid their counsel and shaH therefore not be construed either for or against either party.
No negotiations concerning, or modifications made" to, prior drafts of this Agreement or memoranda thereof shall be construed in any.manner to limit, reduce or impair the rights. remedies. duties and obligations of the parties under this Agreement or to restrict the meaning of
any of the provIsions. of this Agreement or to constmc any of the provisions of this Agreement in
~.ther party's favor.
[REMAINDER OFPAGE LEFT BLANK]
20 08/07/04
SUGAR WAY, LTD., a HawaiicoIporation ..
. .
. BY:Jl;:::oo~.;,....:---. Its PreSident' .
~AMES10HN CRESSWELL HAYNES II, as Trustee aforesaid
UKUMEHAME QUARRYCOMP ANYpMITED, PARTNERSHIP, a Hawaii limited partnership
.. By: UKUMEHAMEQUARRYMANAGEMENT, INC., a Hawaii corporation Its general partner
By:
" . ,~
~
•.. , '.1. ~r \... .
/A.A..'..: . /"rr,,:7' - '.
SUGAR WAY, LTD., a HawaiicoIporation ..
. .
.~ . , . .;... "" - ",,"", -,' ',' ",:.-- ""
By: .. ~ ........ ' ... '. ..•. .. .. . dt;:;;;w~ . Its PreSident· .
-
~AMES10HN CRESSWELL HAYNES II, as Trustee aforesaid
UKUMEHAME QUARRYCOMP ANYpMITED, PARTNERSHIP, a Hawaii limited partnership
.. By: UKUMEHAMEQUARRYMANAGEMENT, INC., a Hawaii corporation Its general partner
By:
" . ,~
~
... ' .." ~r \... .
/A.A..'...: . /"rr,,:7' - '.
APPROV At RECOMMENDED:
Director. Depanment of Public and Environmental Management
__ ~~~.=L~C~.~~~~ ___ GLENN CORREA Director, Department of Parks and Recreation
APPROVED AS TO FORM AND LEGALITY:
County of Maui
22
ALAN M. ARAKAWA . Its Mayor
Pmchascr
08/07/04
WE AGREE TO ACTIN STRICT
ACCORDANCE WITHTHEFOREGOING:
TITLE GUARANTYESCROW SERVICES, INC.
By:
23 08/07/04·
WE AGREE TO ACTIN STRICT
ACCORDANCE WITHTHEFOREGOING:
TITLE GUARANTYESCROW SERVICES, INC.
By:
23 08/07/04·
STATE OF HAWAII ) ) ss.
COUNTY OF MAUl )
On this 30 ~ day of :r \A.l'~ , 200l/,_before, me personally appeared ::ra.."'t~ -S ,C;,' ,~n-e~ Ir, to me Personally known/proved to me on"the basis"of satisfactory evidence, who, being by me duly sworn or affirmed, did s~y that such ~erson executed the foregoing instrument as the free act and deed of suchperson and~ if applicable, in the capacity shown, having been duly authorized to execute such instrument in such capacity.
,I"~, IN WITNESS WHEREOF have hereunto set my hand \"" ""~ ~,\ ~ YEII~;I,~ • "';--""'--
6~""···"~~ . ~5{ .0'''1' \ NO :ARY PUBliC, State of Hawaii-
=, #' ~c \ ' \ \. ~.~ ~.A"tl . 1--\ ~ V\ Y\ -e. \(.. V e..V'\ ~ Y""-~ .~. ..!~ ~ (Prin N ) -"',-r~· ••••• "~t:.# - t ame ",,..., 7'E Of ' ~~ - 51 1 ' ,./ '1"I'IU",.,,1 My cOlpmission expires: , ~ d- ()~ '6
STATE OF HAWAII ) ss.
COUNTY OFMAUI
)
)
.-<-:: On this 30 tt-day of 3' V\. t ~, 200j, before me personal1y appeared -.J 0 h'10 M, k €A.. f"'\ , to me personally known/proved to me on the basis of
satisfactory evidence, who, being by me duly sworn or affirmed, did say that such person execut~d the foregoing instrument as the free act and deed of sucbperson and, if applicable, in the capacity shown, bavingbeen duly authorized to execute such instrument in such capacity.
IN WITNESS WHEREOF., I have hereunto set my hand and official seal.
~~~ 'TARYPliBuc, State of Hawaii
(Print Name)
My commission expires:
·,
, STATE OF HAWAII
COUNTY OF MAUl '
) }ss.
)
" . On this ~ day of . -::}Vt lL:" ,200,:(beforemepersonally appeared S ste.pbe.n GoCJ'iC-e..iIM ,'tome personallyknownlprovedtomeon"theltasisof " satisfactory evidence, who, being by me duly s.wom or affirmed, did s~ythat suchl'erson executed thefor~going instrument as the free" act and deed of such person and, if applicable, in the capacity shown, having been duly authorized to execute such instrument in such capacity.
IN WITNESS WHEREO
STATE OF HAWAII
COUNTY OF MAUl ,)88.
)
)
On thiso? 1../ day of ~~I . ' .. ' 200t before me personally appeared C7~£s R ,Uw<.L>~J;.. ,to me personally known/proved to me on the basis of satisfactory evidence, who, being by me duly sworn or affirmed, did· say that such person executed the foregoing instrument as tbefree act and deed of such person and, if applicable, in the capacity shown, having been duly authorized to execute such instrument in such capacity ..
IN WITNESS WHEREOF, -1 have hereunto set my hand and official seal. I
··~Z~r~~ NOTARY PUBLIC, State of Hawcili
U-",.,; r. Ouc~ ~o ..• (PrintName)
. .. . Of-/7-&:rd' My comnusslonexplres: ____ _
.,
, STATE OF HAWAII
COUNTY OF MAUl '
) }ss.
)
" , On this ~ day of ,-::}Vt lL:" ,200,:(beforemepersonally appeared S ste.pbe.n GoCJ'iC-e..iIM ,'tome personallyknownlprovedtomeon"theltasisof " satisfactory evidence, who, being by me duly s.wom or affirmed, did s~ythat suchl'erson executed thefor~going instrument as the free" act and deed of such person and, if applicable, in the capacity shown, having been duly authorized to execute such instrument in such capacity.
IN WITNESS WHEREO
STATE OF HAWAII
COUNTY OF MAUl
, NO :ARY PUBUC" State ,of Hawaii
G ~V\ V\ -e ~. V6V) +-vt~ (Print Name) "
My commission expires: ~ /;),/>Ooi
,)5S. )
)
On thiso? 1../ day of ~~I ' " " 200t before me personally appeared C7~£s R ,Uw<.L>~J;.. , ,to me personally known/proved to mean the basis of satisfactory evidence, who, being by me duly sworn or affirmed, did· say that such person executed the foregoing instrument as tbefree act and deed of such person and, if applicable, in the capacity shown, having been duly authorized to execute such instrument in such capacity. '
IN WITNESS WHEREOF, -1 have hereunto set my hand and official seal. I
·~Z~r~~ NOTARY PUBLIC, State of Hawcili
U-",.,; r. Ouc~ ~o ".(PrintName)
, .. . Of-/7-&:rd' My comnusslonexplres: ____ _
".
STATE OF HAWAII
COUNTY OF MAUl
) )ss.
)
. . On this ;).,A.. day of~ ~ ~ 'E>~. ,200~ before me personally appeared-~ -S. CA YYl N-~ , to me.personally known/proved ,to me on theQ,aSis of
satisf ~IY eVidence, wilo, being by· me duly sworn or affirmed, did say that such 'person executed the foregoing instrument as the free act and deed of such person and, if applicable, in the capacity shown, having been duly authorized to execute such instrument in such capacity.
STATE OF HAWAII
COUNTY OF MAUl
have hereunto set my hand
- Cf\, N TARY PUBUC, State of Hawaii
W lAV\V\ of ~ ~ V t-Y\-hA V"-(Print Name) ...;./
My commission expires: S J;;-I ~'i.
) SSe ~
)
On this day of , 200_, before me personally appeared ______________ ----J' to me personally known/proved to me on the ba$is of satisfactory evidence, who, being by me duly sworn or affirmed, did say·that such person executed 'the foregoing instrument as the free act and deed of such person and, if applicable, in the capacity shown, having been duly authorized to execute such instrument in such capacity.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
NOTARY PUBLIC, State of Hawaii
,;(Print Name)
My commission expires: ____ _
-,'
STATEOFHAWAIT
COUNTY OF ,MAUl
) ) SS. )
AUG 27 2004 On this day of '" 20 ~ before me appeared ALAN M.
ARAKAWA, to me personally known,who being byrne duly sworn did say that he is .the Mayor of . the County of Maui, a political subdivision of the State of Hawaii,· and that the seal affixed to the foregoing instrument is the lawful seal ()f the said County ofMaui, and that the said instrument was._ signed and, sealed in behalf of said CountyofMaui by authority of its Charter, and the said ALAN M.ARAKAWA acknowledged the said instrumentto be the free act and deed of said County of
-Maui. - .. ' -
(Print Name) ... , 00' Myco~ission expires: /0 J 9~h
, . ~ J
STATEOFHAWAIT
COUNTY OF ,MAUl
) ) SS. )
AUG 27 2004 On this day of '" 20 ~ before me appeared ALAN M.
ARAKAWA, to me personally known,who being byrne duly sworn did say that he is .the Mayor of . the County of Maui, a political subdivision of the State of Hawaii,· and that the seal affixed to the foregoing instrument is the lawful seal ()f the said County ofMaui, and that the said instrument was._ signed and, sealed in behalf of said CountyofMaui by authority of its Charter, and the said ALAN M.ARAKAWA acknowledged the said instrumentto be the free act and deed of said County of
-Maui. - .. ' -
(Print Name) ... , 00' Myco~ission expires: /0 J 9~h
, . ~ J
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EXHIBIT ''2"
. LAND COURT REGULAR SYSTEM
AFTER RECORDATION. RETURN BY: MAIL OPICK;.UP ()
.~.
Tax Map Key Nos. (2) 4-R.002: 009, 028, 048,049 057,058, 059,{)67, 068, 069 and 070
~OUITCLAIM ~EED
KNOW ALL MEN BY THESE PRESENTS:
Total Pages:
That SUGAR WAY, LTD., a Hawaii corporation, ast{) an undivided 35.29% interest; JamesJ.c. Haynes II, also known as JAMES JOHN CRESSWELL HAYNES 11, as Trustee of the James J.e, Haynes Tmstdated December 22, 1987, as to an undivided 23.53% interest; HUGH.JEFFREY FARRINGTON, as to an undivided5~88% interest; JOHN M. KEAN, as to an undivided 11.77% interest; and UKUMEHAME QUARRY COMPANY LIMITED PARTNERSHIP, a Hawaii limited partnership, as to an undivided 23.53% interest, as Tenants in Common (collectively, .. Grantor"), for and in consideration of the sum of TEN AND NO/IOO DOLLARS (51 0.00) and other valuable consideration paid to Gr.mtor by COUNTY OF. MAUl, apolitical subdivision of the State of Hawaii, whose mailing and post office address is 250 South High Street. Wailuku, Maui, Hawaii 96793 ("Grantee"J, receipt whereof is herehy acknowledged, do by these presents remist:, release and quitclaim unto said Grantee:
AU of Gr.mlor's right, title and interest in and to that certain real property described in Exhibit "A" attached hereto and made a part hereof.
08/07/04
,And the reversions, remainders, rents, issues andprofjl$ thercofand all of the . estate, right, title and interest of Grantor, both at law and in equity, therein and thereto.
TO HAVE AND ·TO HOLD ·the same. togethcrwith all rights, privileges and appurtenances thereunto belonging or appertaining orbeld and enjoyed therewith unto said
'Grantee as aforesaid, forever. 0.'
. Grantee acknowledges that· the property described in Exhibit "A" is . being. conveyed in "AS'S" condition and that Grantor is expressly discJaimingany e~pressed or
. implied w~antiesof any kind withtespectto theproperty,including, without limitation, any warranties relating to habitability,tbestate of repair of said property, fitness.;ofthepropcrtyfor a
'. particular purpose or any purpose,hmd' use and zonmg.requirements, legal restrictions, ·soil compaCtion, drainage, the absence ofbazardousmaterials in, on and under said property. and the nature arid quality of the soils and of·all materials in. on. under and above the property. Grantee hereby assumes ,all' risks with respect 10 any' condition of the property and shall indemnify, defend andholdhannless'Grantor from and against any .. and all· claims. liabilities and expenses, including attom¢ys' fees, incurred by or asserted against Grantor, as provided in that certain unrecorded Purchase and . Sale Agreement and Joint Escrow Instructions 'between '. Grantor, as Seller,arld Gran~ee,aSPurchaser. dated cAugust _.2004. .
Grantee expressly understands and agrees that the propeny shall never be used for any purpose othcf'thanas apru-k for public recreation and cxc1usivcJyfor thcpurposcs and uses set forth, at the time of execution of this Deed. in the MauiCountyCode Section19.615.020 PK-
. 1 Neighborhood Park District, until such time as it has been subdivided and dedicatedasa public .road or highway in compliance with· aU applicable laws. codes,. ordinances, rules~ regulations andothergovemmental requirements for a public road or highway; provided, however. as to the portion of the property which'is not subdivided and dedicated as a public road or highway, the foregoing limitation to use of the· property as a park for puhlic recreation ,shall apply and remain in full force and effect. No }>prtion of such park shall be illuminated for night time use. except for fully shielded down lighting as necessary for .safety, access and parking. The foregoing restrictions on use shall be deel1ledcovenants running with the . land and binding upon the successors and assigns of Grantee. .
TIltS instrumenl may be;: executed in une or Inore counterparts. It shaH be fully . executed when each party whose signature is required has signed at least one counterpart even though no one counterpart contains the signature of allpariies.Eachexecuted counterpart shall be deemed an original. but all of which together shall constitute"oileand the same document ..
IT IS MUTUALLY AGREED that the termS "Grantor" and "Grantee", as and when used herein, or any pronouns usedjnplace thereof, shall mean and include the masculine or feminine,the singular or plural number. individuals,corporations or other entities and their and each of. their respective successors, successors in trust, heirs, legal and personal representatives, and permitted assigns. according to the context thereof.
08/07104
,And the reversions, remainders, rents, issues andprofjl$ thercofand all of the . estate, right, title and interest of Grantor, both at law and in equity, therein and thereto.
TO HAVE AND ·TO HOLD ·the same. togethcrwith all rights, privileges and appurtenances thereunto belonging or appertaining orbeld and enjoyed therewith unto said
'Grantee as aforesaid, forever. 0.'
. Grantee acknowledges that· the property described in Exhibit "A" is . being. conveyed in "AS'S" condition and that Grantor is expressly discJaimingany e~pressed or
. implied w~antiesof any kind withtespectto theproperty,including, without limitation, any warranties relating to habitability,tbestate of repair of said property, fitness.;ofthepropcrtyfor a
'. particular purpose or any purpose,hmd' use and zonmg.requirements, legal restrictions, ·soil compaCtion, drainage, the absence ofbazardousmaterials in, on and under said property. and the nature arid quality of the soils and of·all materials in. on. under and above the property. Grantee hereby assumes ,all' risks with respect 10 any' condition of the property and shall indemnify, defend andholdhannless'Grantor from and against any .. and all· claims. liabilities and expenses, including attom¢ys' fees, incurred by or asserted against Grantor, as provided in that certain unrecorded Purchase and . Sale Agreement and Joint Escrow Instructions 'between '. Grantor, as Seller,arld Gran~ee,aSPurchaser. dated cAugust _.2004. .
Grantee expressly understands and agrees that the propeny shall never be used for any purpose othcf'thanas apru-k for public recreation and cxc1usivcJyfor thcpurposcs and uses set forth, at the time of execution of this Deed. in the MauiCountyCode Section19.615.020 PK-
. 1 Neighborhood Park District, until such time as it has been subdivided and dedicatedasa public .road or highway in compliance with· aU applicable laws. codes,. ordinances, rules~ regulations andothergovemmental requirements for a public road or highway; provided, however. as to the portion of the property which'is not subdivided and dedicated as a public road or highway, the foregoing limitation to use of the· property as a park for puhlic recreation ,shall apply and remain in full force and effect. No }>prtion of such park shall be illuminated for night time use. except for fully shielded down lighting as necessary for .safety, access and parking. The foregoing restrictions on use shall be deel1ledcovenants running with the . land and binding upon the successors and assigns of Grantee. .
TIltS instrumenl may be;: executed in une or Inore counterparts. It shaH be fully . executed when each party whose signature is required has signed at least one counterpart even though no one counterpart contains the signature of allpariies.Eachexecuted counterpart shall be deemed an original. but all of which together shall constitute"oileand the same document ..
IT IS MUTUALLY AGREED that the termS "Grantor" and "Grantee", as and when used herein, or any pronouns usedjnplace thereof, shall mean and include the masculine or feminine,the singular or plural number. individuals,corporations or other entities and their and each of. their respective successors, successors in trust, heirs, legal and personal representatives, and permitted assigns. according to the context thereof.
08/07104
c,IN WITNESS WHEREOF, Gmntor and Grantee have executed theseprescnts on the day of , 200_"
SUGAR WAY. LTD .• a f.lawaii corporation
By: JAMES R. JUDGE· Its President
James J.e. Haynes II, also known as JAMES JOHN CRESSWELL HAYNES II, as Trustee aforesaid
HUGH JEFFREY F ARIUNGTON
JOHNM.KEAN
UKUMEHAME QUARRY COMPANY LIMITED, PARTNERSHIP, a Hawaii limited partnership
By: UKUMEHAME QUARRY MANAGEMENT.
Dy:
INC., a Hawaii corporation Its. general partner
Name: Its
Grantor
08/07/04
. APPROVED AS TO FORM:
Corporation Counsel County ofMaui
. ,COUNTYOF MAUl
By: Its Mayor
. Grantee
.08/07104 .
STATE OF HAWAII
COUNTY OF MAUl
.) )ss. )
On this ___....._dayof ~ 200_,befoTe mepersonaJlyappeared _______ ---:--___ ~' ,to me personaUy known/proved to me on the basis of satisfactory evidence. who.· being by me' duly sworn or affinned, .did say that such person executed the foregoing instrument as the. free act .. and deed of such person and, if applicable, in the capacity shown, having been duly authorized to execute such instrument in such capacity ..
IN WITNESS WHEREOF, I have hereWlto sel my hand' and official seal.
STATE OF HAWAII,
COUNTY OF MAUl
NOTARY PUBLlC, State of Hawaii
(Print Name) My commission expires: __ '--__
) ) ss. )
On this day of , 200 _.before me personally, appeared _________ ~ _____ "tome personally known/proved to me on the basis of satisfactory evidence, who,being by me duly sworn or affinned, did say that such person executed the' foregoing instrument as the' free' act and deed of such person arid, if applicable, in the capacity shown, having been duly authorized to execute such instrument in such capacity.
IN WITNESS WHEREOF, fhave hereunto set my hand and official seal.
NOTARY PUBLIC, State of Hawaii
(Print Name) My commission expires: _____ -_
08/07/04
STATE OF HAWAII
COUNTY OF MAUl
,) )ss. )
On this ~day of: 200.;;;.,· before mc.personally appeared _______ -:--__ -:-_:--:-_-:-'"" ,lo'me personally known/proved to me on the basis of ,satisfactory evidence,who. being by ,me . duJy. sworn ,or affirmed. did say that such person ..
•. executed the',foregoing instrument as,the·free act..anddeed'ofsucb person and, ifappli~ble,in;·· . the cap~ity shown. baving· been duJyauthorized. to execute such instrument in such capacity. . . .
IN WITNESS WHEREOF, I have bereUllto set my hand, and officiat seaL
·'STATE OF HAWAIJ
COUNTY OF MAUl
NOTARY PUBLlC, State ofliawaii
. (print. Name) My commission expires: , ____ _
) ·)ss.
)
On this _._,._ dayef • 20o_, before me personalJyappeared _ ' to me personally known/proved to.me on the 'basis of satisfactory evidence, who, being by me dulysworIl or affirmed,did s~y that sucbperson executed the foregoing instrument as the free act and deed of such pcrson.and~if applicable, in the capacity shown, having been duly authorized to execute such instrument in such capacity .
. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. .
NOTARY PUBLIC, State of Hawaii
(Print Name) My commission expires: ~ _____ _
,08107/04
STATEOFHAWAll ) ) SS.
COUNTY OF MAUl )
On this . day .of , 20_~. before me appeared ALAN M. ARAKA W ~ to me personally known, who being byrne duly sworn did say that he is the Mayor ofthe County of Maui, a political subdivision of the State of Hawaii. and that the seal-affixed to the foregoing instrument is the IawfuJsea) of the ~said COWltyofMaui, and that the -.. said instrument was signed. and sealed in behalf of said County of " Maw 'by authority of its Charter, and the said ALANM. ARAKAWA acknowledged the said instrument t() be the free act and deed of said County of MauL
IN WlTNESS WHEREOF, I have herewlto set my hand and official seal.
" NOTARY PUBLIC. State.ofHawaii
(Print Name) ~y commission expires: ________ _
08/07/04
J~XHIBIT "nAil
; LOT A-I
····UKUMEHAMEAGRICULTURALSUBDIVISION-PHASEI
SAME BEING PORTIONS OF GR.ANT4973 TOWALTERM. GIFFARD;ROYAI..PA1ENT6338, ..
LAND COMMISSION AWARDS 3702 & 5410,APANA 4TODAVID MALO;':
ROYALPATENT~4497,J . ..AND:COMMISSION AWARD 8559,:APANA4TO KANAINA
. (CER.ttFICATE OF BOUNDARIF.S62)
ATUKuM:E.HAME,'LAHAINA, ISLAND OF~UI, HAWAn
Beginning .at the west comer of thiS parcel ofland,being also the south comer of the Govemment Land . . - .
ofUkumehame and on the northeast side ofHonoapiilani Highway [F .AP. No. F-(3»),the coordinates of Said point
of beginning referred to Govemment Survey Triangulation Station""KILEA"being 4,100,16 Jeet South. and
5,346.31 feet East and thence mnriingbyazimuths measured clockwise from true South: ',",
1. 204" .51'115.85 f~alongthe Govemment Land of Ukumehame;
2. 256° 45'
3. 2940 36'
549.30 . feet along the Goi>emment Land ofUkum~e;
'335.93' "feet alongLot.B ofUkumehame Agricultur.al Subdivision - Phase 1;
4. Thence along LotB ofUkumehameAgDcultutalSubdivision .,Phase 1, on a curve to the right With a
5.
6.
350 00'
3360 00' .
420 Waiabmilo Road Suire4!1
Honolulu Hawaii 968"7-4941 Telephone 80BW 1133
Fill< 808 842 1931 eMail MttowillCkane.aIII.l
radius of 6,041.00 feet, the chord azimuth and distance being:
300· OS' 09.5" 1155.06 feet; .
107.09 feet along Exclusion 3, bei.ngall ofR.P. 2506, " LC.Aw. 5380, Ap. 1 toHulu;
83.82 feet along Exclusion 3, being all ofR.P.2506 • . LC.Aw.5380, Ap. 1 to Hwu;
-l~
~I . .. &b R. -M. TOWIll COllPORATION
.SINCE. '9.0
ITEM "1"
7. 240" 00'
8. 213" 00'
147.84
13.46
feet along Exclusion 3, being all of R.P. 2506, LC.Aw. 5380,.Ap.·1 to HuIu; . ,
feet along Exclusion 3, being all ,ofR.P. 2506, LCAw. 5380, Ap.l to HuIu;
9. Thence along Lot B of Ukumehame Agricultural Subdivision -Phase 1, on a curve to the right with a radius of 6,041.00 feet, the chord azimuth and distance being:
10.
11.
12.
13.
14.
IS.
16.
17.
3150 00'
-~-.
72" 30"
" 55"45'
315" 4S'
21S" 1.0'
2940 20'
204° 4S;
3lSo 00'
420 Wilialcamilo Road Su~411
Honolulu Hawaii 968" 7 ... 941 T~haneDWt'33
filt818 B4Z 1931 eMail MltowillGklne.CXJm
301.08
,244.67
416.75
359.11
527.20
102.30
'76.32
503.97
310"55'15" 859.44 feet;
. feet along Lot B ofUkumehame Agricultwal Subdivision';' Phase 1;
feet along Exclusion 1, being all ofR.P. 2441, L.CAw. 6751, Ap. 3 to Alai;
feet along Exclusion 1, being all ofR-P. 2441, 'LC..Aw. 6751,Ap. 3 toAloi;
feet along Exclusion 1, being all ofR-P. 2441, L.C.Aw. 6751, Ap. 3 to A1oi;
feet along Exclusion 1, being all ofR-P.'2441, L.C..Aw. 6751, Ap. 3 to Aloi;
feet along Exclusion 1, being all ofRP. 2441, L.C.Aw. 6751, Ap. 3 to Aloi;
feet along Exclusion 1, being allofRP. 2441, L.C..Aw. 6751, Ap. 3 to Aloi;
feet along Lot B of Ukumehame Agricultural Subdivision - Phase 1;
-2-
.. R. M.'TOWILL CORPORATION
Pflnning , Engineerng
Environment.! SeIv'ges Photog~
~ ConstNeton Man.gement SINCE t 910
18. Thence, along LOtBofUkumehame Agricultutal Subdivision -'Phase.I, on a curve to the· left with a. , ' tadius of 8,559~OOfeet the chord azimuth and
19.
20.
21.
'427.78
429.03
69.41
distancebeing: ,
312"26' 365" 763.54feet;
feet along &elusion 2, being all ofR.P: 1723. , L.C.Aws. 5124 & 6408, Ap. 2 toJ. Kalaikini;
feet along Exclusion 9, being a portion ofR.P. 7775, ,L.C.Aw. 6709 to Popolo;
feet along Excluslon9, being a portion of R.P. 7775, .~LC.Aw. 6709 to Popolo;
. .. .
22. Thence along the northeast side ofHonoapiilani Highway [F.AP. No.F-(3)]. on a curve to the right
23.
24.,
, , with a :cadius of 11,419.16 ,feet, the chord azimuth
74.20
and dist31lce being:
128·34' .26" 133.31 feet;
feet along the northeast side of Highway Remnant 33-A;
feet along the northeast side of Highway Remnant 33-,A; , '
25. Thence along the northeast side ofHonoapiilaniHighway,[F.A..P.No. F-(3)), on a curve to the right
26.
27.
28.
132' 50' 30"
166' 16'
218' 10'
420W~iakamilo Road 5oit0411
Honolulu Hawaii 968·7--4941 Telephone IIa! W 1133 '
Fax 008842 1931 , eMail MItOWillGi-one.aim
with a mdiusof11.419.16 feet, the chord azimuth and distance being:
131"45' 30" 431.80 feet;
799.64 feet along the northeast side ofHonoapiilani Highway [F.A.P. No. F-(3»);
·45.24' , feet along the northeast side of fEghway Remnant 26-A;
54.05 feet along Exclusion 8. being all ofR.P. 2506, -3-
~II .. ~~
R..M. TOWIll CORPORATION SINe" 1930
pa..nil'lg Engi"'''S
Environmenlal Sew'GIs fIhcJtogIariti IeIIy
S.-ying Calnnlcton Managemtnt
29. .105.60
30. 13r 59' 160.55
31. 233.89
32. 110· 04' 28" 36.54
33. 132" 50' 30" 210.36
L.C.Aw.5380, Ap. 4 roHulu;
feet along Exclusion '8,~beingall ofR.P. 2506, L.C.Aw~ 5380, Ap. 4 to Hulu;
feet along Exclusion 8, being all ofR.P_2506, LC.Aw.5380, Ap. 4 to Hulu and Highway Remnant '
,~-A;
feet along the nottheast side of Highway Remnant 22-A;
feet along the northeast side of High way Remnant 22-A; .-
feet along the northeast side of Honoapiilani Highway (p.A.P. No.F-(3)];
34. Thence alortgthe northeast side ofHonoapiiJani Highway [p.A.P. No. F-(3»), ana curve to theleftwith ---
35. 126° 28' '256.52
36. 112· 30' 50.03
a tadius of 3,859.72 feet, the chord azimuth and distance being: -
1298 39' 1St! 429.23 feet;
feet along the northeast side of Highway Remnant 16..;A;
feet along the northeast side of HighwayRemnant 16-A;
37. Thence along the northeast side of Honoapiilani Highway [pAP. No. F-(3)], on a curve to the left with
~WaiaQmilo Road Suite4!!
Honolulu Hawaii 968" 7 ... 941 Telephone ~ 84.? 1133
Fax IlJ8 842 1931 eMail MltowiliCHlne,CDm
, a radius of 3,859.12 feet, the chord azimuth and distance being:
119" 49' 285.11 feet;
-4-
A R. M. TOWILL CORPORATION
SINCE t930
Plmning Engineerhg
ErMronmenliJl s.rv'QIS ~
S..-yIIg Caiitiuci"on Management
. 37. . 117·42' 715.80 feet along the nottbeastside ofHonoapiilani Highway. [pAP. No.F-(3)Jto the point of beginning and con13ining a Gross .Area of 54.174 Acres and deducting the fonowingdescribed>Exclusion 6 fora Net . .Area of 53.654 Acr~ more or less; and
EXCLUSION 6
Being All of Royal Patent· 2506, Land Commission·Award5380, .Apana 5 to Hulu
At.Ukumehame, Lahaina, Island ofMaui, Hawaii
Beginning at the north camerof tbisparcel ofland,.the coordinates of said point of beginning referred to .
GQvemmettt Survey Triangulation Station c"KILEA" being 4,807.00 feet South and 7,091.09 feet East and thence running by azimuths measured clockwise from true South: .
1.
2.
3.
4.
5.
3140 45' 132.69
370 30' 73.95
60· 00' 142.56
1550 30' 81.84
216'00' . 184.04
. feet along Lot A-1·of UkumehameAgriculrural Subdivision ~Phase I;
feet along Lot A-I of Ukumehame Agriculrural Subdivision - Phase 1;
.feetalong Lot A-1 of Ukumehame Agriculrural Subdivision - Phase I; .
feet along Lot A-1 ofUkumehameAgriculrural Subdivision - Phase I;
feet along Lot A-1 of tJk:umehame Agricultural Subdivision - Phase I to the point of beginning and containing an area of 0.52 Acre, more or less; and
. RESERVING, HOWEVER, the following described easement
420 Waiakamilo Road Suitl!411
Honolulu Hawaii 968-7-4941 Telephone 80B 84/ 1133
FadO! 842 1931 eMail [email protected]:oi'n
-5-
tJa. . R. M. TOWILL CORPORATION
Planning Engi"''19
Environmental SeW cas '~1eIIy
S.-ying ConRiiidon M.nIgement
--
EASEMENTB
. For Access and Utilities Pu'Poses
Beginning at the southwest comeroftbis easement, being along the northeast side ofHonoapiilalli Highway [F.AP. No. F-(3)], the coordinates of said point ofbeginningtefe1red to Government Survey Triangulation Station "KILEA" being 5,628.63 feet South and 7,466.53 feet East and thence running by azimuths measured clockwise from true South:
1. 132" 50' 30"
2. 222° 50' 30" 300.00
feet aloflg the northeast side ofHonoapiilani Highway [pAP. No. F-(3)];
feet;
3. 1b.e~ce on a curve to the left with a radius of 370.00 feet, the chord azimuth and distance being:
211" 25' 15" 146.53 feet;
200· 00' 151.00 feet;
5. Thence on a curve to the right with a radius of 530.00 feet, the chord azimuth and distance being:
204" 02' 40" 74.76 feet;
6. Thence along Lot B of Ukumehame Agricul1lmll Subdivision - Phase -1, on a curve -to the right with a radius of 6,041.00 feet, the chordaiimuth and distance being:
312· 34' 56" 62.24 feet;
7. Thence on a curve to the leftwith a radius of 470.00 feet,.the chord azimuth and distance being:
8.
9.
23" OS' 41" 50.75 feet;
20· 00' " 111.00 feet; . . .
Thence on a CUrve to the nght WIth a radius of 430.00 feet, the chord azunuth and distance bemg:
, 420 Walalcarnilo Road Suit!! 411
Honoll,ll~'Hawaii 968°7-4941 Telephone 8al80 1133
F.,. SOl! 842 1931 eMail r"l1towillCHx.!e.am
31" 25' 15" 170.29 feet;
-6-
L!!. R. M. TOWILL CORPORATION
S'NCE , .30
"""ning EngnMri"19
Environrnentil SeniQlS PhotogramrIetry •
5..Jrwyi1g Canstrlician MlMgement
10. 42- 50' 30ft '300.00 feet to the point of beginning and containing an area ·ofO.927 Acte;and ..
Seller furtherreselVes the rightto construct. atits expense. gravelor.pavedroads from the HonoapiiJani .. Highway to Seller's 46l:;otSubdivision (File No. 4.876) over EasementB ..
Description is pased on recorded data which has been mathematically adjusted. The physical location of the
... above described Exclusion 6 is subject to a field survey and/or agreement between the affected property owner(s).
420 Waiakamilo Road SuirC!411
Honolloliu Hawaii 968:7-4941 Telephone 808 W 1133
fall BOB 842 1931 eMa~ MltowillCH:lne.mm
-7-
LJ!. .R.M. TOWILL CORPORATION
··SINC:E 1 ~30
.. l'IInning
&9neeri'lg EmiroM*llll SeIv·Q15
PholCJgI". ietIy .. S.-ying
CanstiVCtonM.nIgIrMnt
·.
l..oTA-2
UKUMEHAMEAGRICULTURALSUBDIVlSION -PHASE I
SAME BEING A PORTION OF GRANT 4973 TO WALTERM. GIFFARD
AT UKUMEHAME, LAHAINA, ISLAND OF MAUI~ HAWAII
. Beginning at the west comer of this parcel of land, being also the southeast comer of Exclusion 9, being
a portion of Royal Patent 7775, Land Commission Award 6709 to Popolo and on the northeast side ofHonoapiilani . ,
Highway --{pAP. No. F:'(3)], the coordinates of said point of beginning referred to Government Survey ,-. .
Triangulation Station "KILEA" being 6,957.80 feet South and 9,014.39 feet East and thence running by azimuths
measured clockwise from true South:
1. 2030 00'
2. 2980 00'
3. 1980 15'
96.89
441.34
435.50
feet along Exclusion 9, being a portion ofR.P. 7775, L.C.Aw. 6709 ~ Popolo;
feet along Exclusion 2, being all of R.P. 1723, L:C.Aws. 5124 & 6408, Ap. 2 toJ.Kalaikini;
feet along Exclusion 2, being all of R P. 1723, L.CAws.5124 & 6408, Ap. 2 toJ. Kalaikini;
4. Thence along Lot B of Ukumehame Agricultural Subdivision- Phase 1, on a curve to the left with a
5.
6.
7.
42" OS'
85" 00'
1160 50' 30"
420Waiaumilo Road Suitc411
Honolulu Hawaii 968"7-4941 Telephone 8M 84' 1133
FiilI 00Il842 1931 eMail rntowillClklne.c:om
radius of 8,559.00 feet the chord azimuth and distance being:
2980 57'45" 2445.66 feet;
449.35 feet alongthe.Govemment Land of Ukumehame;
287.50 feet along the Govemment Land ofUkumehame;
-1116.51 . feet along the northeast side of Honoapiilani Highway (F.A.P. No. F-(3)];
-1-
LJa. ··R.'M. ·TOWIll CORPORATION
S.INCE t ,,~.o
....
8. 127.78
9. ur 40' 10" 250.04
'feet along the northeast side of Highway Remnant '38-A; ,
feet along the northeast side of Highway Remnant 58-A;
10. Thence a1o~the northeast Side ofHonoapiilaniHighway [p.A.P.No. F;'(3)], on a curve to the right-
11. 1270 16'
,with a r.uiius of2,824.79 feet, the chom azimuth and ~distance~being: "
'123-'55' 330;13 feet;
'641.73 feet along the nottheastside of Honoapiilani" , Higlrway(F.A.P;No. F-(3)]to the point of beginning
and containing an area of 30;662 Acres; and
SUBJECT, HOWEVER, to a portion of Existing Easement 11(60 feet wide) for Access and Utility Purposes;"
RESERVING, HOWEVER, the following described easement
420 Waiakamilo Road " Suite 411
'Honolulu Hawaii 968'7-4941 Telephone 8(884' ,1133
Fa~ 808 842 1931 ' , eMaii1..TItowillCklne.CDI\.!
-2-
~II.' ~4U
'R.,;'M. ,TOWIll. CORPORATION SINCE 1.310
.f'linning Et9..-i'19
Environmental .'DIS ~N!IIY
,5JMIyIIg' Construc:ton Manlgement
EASEMENTE
,For Access and Utilities Purposes
Beginningl at . the south comer of this easement, being along thenottheast side of Honoapiilani Highway . [F.A.P. No. F-:(3)], the coordinates of said point of beginning tefeued to Govemment Survey Triangulation Station C1GLEA" being feet 7,788.57 South and 10~93.82 feet East and thence running by azimuths measured clockwi~e from true South: . .-
1. 1160 50' 30" ,
2. 2070 00'
-
60.00
138.79
feet along the nottheast side ofHonoapiilani Highway [p.A.P. No.F-(3)];"
feet;
3. Thence on a curve to the left with a radius of 320J)() feet, the chord azimuth and distance being:
186- 58' 219.24 feet;
.4. 1660 56' 256.64 feet;
5. Thence on a curve to the right with a radius of430.00 feet, the chord azimuth and distance being:
1680 59' 27" 30.87 feet;
6. Thence along Lot B of Ukumehame Agricu1tw:al Subdivision -Phase 1, on a curve to the left with a
7. 346 0 56' 229.87
radius of 8,559.00 feet, thechorcl. azimuth and distance being:
301 0 48' 43" 82.40 feet;
feet;
8. Thence on a curve to the right with a radius oI380.00 feet, the chord azimuth and distance being:
9. 27° 00' 138.62
60 58' 260.35 feet;
feet to the point of beginning and containing an area of 0.885 Acre.
Seller further reserves the right to construct, at its expense, gravel or paved roads from the Honoapiilani Highway to Seller~s 46 Lot Subdivision (File No. 4.876) over Easement E.
420 Waiakamilo Road !";uitc 411
Honolul(o·Hawaii 968' 7~941 Telephone 808 84;11133
Fax BOB .8421931 eMail r'l'[email protected]
-3-
~JJ. ... ~ R.M. TOWILL CORPORATION
SINCE 1910
Pllnning Engineai1g
Environmen. Setvces PhotopilMetry
_S.-.ying Constructon Management
PARCEL 28
LAHAINA - WAILUKU ROAD
OLOWALU .. PAlJSEcrION
FEDERALAlD PRO,JBClNO.F30 (3)
AT UKUMEHAME,LAHAIN-A,ISLANJ) OF MAUl, HAWAn'
. Beginning at the south comer of this parcel oflan~being also along the of northeast side ofHonoapiilmi
Highway [F.:AP. No. F30(3)].the coordinates of said point ofbegittnlng referred'to Govemment Survey
Triangulation Station "KILEA~~being 8,301.37 feet South and 11,312.03 feet East and thence running by azimuths
'measured clockwise from. true 'South:
1. Along the northeast side ofHonoapiilani Highway LF.A.P. No~ F 30(3)J. on a 0Jrve to theright~ith a
2. 2650 00'
3. 420 05'
Metes and Bounds description is based on a map 'entitled <"lahaina - Wailuku Road -Olowalu -Pali Section, Federal Aid.Project No. F 30 (3)," prepared by the Territory of Hawaii, Department of Public Works, Division of Surveys and Rights of Way.
420 Waiakamilo Road ::>uite411
Honolulu Hawaii 968'7-4941
152.80
,8150
,r:adius of 5,689.58 feet, the chord azimuth and distance being:
11S- 47' 45" 108.40 feet; ,
feet along south side ofHigitway Remnant 39..;A
• feet along the Govemment Land ofUkumehame to the point of beginning and containing an area of 4,259 Square Feet. '
-1-
tJa,· , Telephone 808 842 1133
Fa. 8088421937 R. M. TOWIll CORPORATION
Pllnning Engi~19
&Mronmental Servces I'hotogi- '*1
.'.§.Jrwying , eMailr-ntowiIICKlne.tDm .' Ontruc:ton~nt·
. EXCLUSION 1
BEING All OF ROYAL PATENT 2441, LAND COMMISSION AWARD 6751,:APANA3 TO ALOI .' .
AT·uKUMEHAME, LAHAINA,.lSLAND OF MAUl, HA WAIl ,
. Beginning at the south comer of this parcel of land, the coordinates of said point of beginning referred to
Government Survey Triangulation Station ''Kll.E.Aubeing 6;008.30 feet South and 7,877.64 feet East and thence
running by . azimuths measured clockwise from .true South:
1. 135'45' 359.11 feet along Lot A-l ofUkumehame Agricultural Subdivision -Phase I;
2.
3.
4.
5.
6.
7.
8.
9.
235' 45'
252' 30'
275' 45'
63' 45'
76' 45'
58' 45'
45~ 45'
24' 45'
. 420 Walakamilo Road Su,Ie411
Honolulu Hawai, 96817 ·4941 Telephone 808 842 1133
Fax 808 8421937 eMail rmlowill@i·one.com
416.75 feet along LotA.:.l ofUkumehame Agricultural Subdivision - Phase I;
596.64 feet along Lots A-land B ofUkumehame Agricultural Subdivision - Phase I;
67.98 feet along Lot B of Ukumehame Agricultural Subdivision - Phase 1;
45.54 feet along Lot B of Ukumehame Agricultural Subdivision - Phase 1;
66. feet along Lot B of Ukumehame Agricultural Subdivision -Phase I;
59.40 feet along Lot B of Ukumehame Agricultural Subdivision - Phase I;
57.42 feet along Lot B of Ukumehame Agricultural Subdivision - Phase I;
46.20 feet along Lot B of Ukumehame Agricultural Subdivision - Phase I;
""1-
4b R. M. TOWILL CORPORATION
PIIlVIing Engineering
Env"onmental SeMCes Photogqmmetry
Surveying Construction M .... gement SINCE 1930
10. ,42'45' 83.16
lI. 24'45' 91.08
12. 114"20' 102;30
13. 38' 10' 527.20
.. ,
Description is based oorecotded data which has been mathematically adjusted. The physical location Cif the above' described Exclusion is subject to afield survey
,feetaIong LotB of_Ukumehame Agricultural .Subdivision - Phase 1;
feet along Lots'Band A~l ot'Ukumehamc .Agricultural Subdivision-phase 1; .,
feet along Lot A-t, of Ukun1.ehame Agricultural Subdivision -Phase I;
feet along Lot A-"l'ofUkumehame Agricultural Subdivision.,..Phase 1 to the point of beginning and containing an area of 4.41 Acres, more or less .
and/ or agreement between the affected property owner(s).
73~5574 Maiau Street, Suite 11 Kailua-Kona,' Hawaii 967 40 November 24, 2003
420Wa.akamiID Road Suite 411
Honolulu Hawaii 96817-4941 Telephone BOO 842 1133
'Fax BOB 8421937 .eMail rmtowillOi-one.tom
'Description Prepared by:
It.M. TOWIll. CORPORATION
Russell Figueiroa Licensed Professional Land Surveyor Certificate Number 4729
-2-
~ "R.M. TOWlLL'CORPORATION
SINCE ,.30
Planning .Engineering
. .Environmental SeMcef f'hotogrilmmetly
Sutveying Construc:tion Milnilgement
EXCLUSION 2
BEINGAll OF ROYAL PATENT 1723, LAND COMMISSION AWARDS 5124 & 6408 .•
APANA 2 TO J. KALAIKINI
ATUKUMEHAME, LAHAINA, ISLAND OF MAUl, HA WAIl
Beginning at the south comer ohb.isparcel ofland, the coordinates of said point of beginning referred to
Govc;:rnment Survey Triangulation Station "KILEA~' being 7,082.20 feet South and 9,440.85 feet East and thence
runrung by. azimuths measured clockwise from true South:
1.
2.
3.
4.
5.
6.
11S' 50'
204'15'
299" 45'
14' 45'
o· 45'
lS'lS'
420W.,akamilo Road Suite 411
Honolulu Hawaii 96817-4941 . Telephone 808 842 1133
fax 808 642 1937 eM.il [email protected]
441.34 feet along LotA-l ofUkumehame.Agricultural Subdivision -Phase I;
1105.86 feet along Exclusion 9, being a portion ofR.P. 7775, L.CAw. 6709 to Popolo and Lots A-1 and B of Ukumehame Agricultural Subdivision - Phase I;
254.76 . feet along Lot B ofUkumehameAgricultural Subdivision - Phase I;
261.36 feet along Lot B of Ukumehame Agricultural Subdivision - Phase I;
264.00 feet along Lot B ofUkumehame Agricultural Subdivision - Phase I;
.610.50 feet along Lot Band A-2 ofUkumehame Agricultural Subdivision - Phase I to the point of heginning and containing an area of 9~ 1· Acres, more or less.
-1-
~I., ~~
R. M, TOWILL CORPORATION 5INCl: 1930
Planning Engineering
Environmental Services ·Photogtammetry
Swveying Construction Management
Description is based on recorded data which has been . mathematically adjusted. The physical location. of the . above described .Exclusion is subject to afield survey and/ or agreement between the affected property owner(s).
73-5574 Maiau Street, Suite 11 Kailua-Kona, Hawaii 96740 November 24,,2003
420Wal~ami!o Road Suite 411
Honoiulu Hawaii 96817-4941 Telephone BOB 342 11 33
Fax 808 8421937 eMail rmtowillO.-one.com
De$cription.Prepared br-
R.:M. TOWILL CORPORA TION
Russell.Figueiroa. , .Licensed Professional Land' Surveyor ,Certificate Number 4729
-2-
t!b R.M. TOWILL'CORPORATION
SINCE 1930
Planning' Engineering
Environmental Setiric:es pho=etry! Construction Management ' I
,EXCLUSION 3
BEING AlL OF ROYAL PATENT 2506;LAND,COMMISSION AWARD 5380
APANA 1 TO HULU
AT UKUMEHAME.LAHAINA. ISLAND ·OF MAUl, HAWAII
~;?nning at the southwest comer of this parcel of land, the coordinates of said point of beginning referred
to Government Survey Triangulation Station c'KILEA" being 4,675. 73 feet South and 7,173.13 feet East and thence
running by azimuths measured clockwise from true South:
1. 215' 00' 159.99 feet along Lots A-I and B ofUkumehame Agricultural.Subdivision - Phase I;
2. 331" 30' 133.30
3. 33- 00' 54.12
4. 60" 00' 147.84
5. 156' 00' 83.82
Description is based on recorded data which has been mathematically adjusted. The physical location of the above described Exclusion is subject to a field survey
feet along Lot B ofUkumehameAgncultur.U Subdivision - Phase I;
feet along Lot B of Ukumehame Agricultural Subdivision· Phase I;
feet along Lot B ofUkumehame Agricultural Subdivision -Phase I;
. feet along Lot A:..l of Ukumehame Agricultural Subdivision - Phase I to the point of beginning and containing an area of 0.47 Acre, mote or less.
and/ or agreement between the affected property owner(s).
420 Waiakamilo Road Suite 411
Honolulu Hawaii 96817-4941 Telephone 808 8421133
Fax8088421937 eMail [email protected]
-J.-
LJb R. M. TOWILL CORPORATION
SINCE '.30
f'IIMing Eng;n..ring
---Environmental Services . Photogrammelry
5uNeying COnstructiOll Managemetl!
73-5574MaiauStreet, Suite 11 . Kailua-Kona, Hawaii 96740 November 24,2003
420 Walilumilo Road Suite 411
Honoluiu Hawaii 96817-4941 " Telephone 1Dl842 1133 '
fallK)8 842 1937 eMail rmtowill@ .. one.com
DescriptionPrepareci by: "
.'RM. TOWIILCORPORATION
", RussellFigueiroa • Licensed .P.rofessional,Land Surveyor, .certificate Number 4729
-2-
tJt. " R. M TOWlLLCORPORATION
,5IN'CE 1930
Planning Engin"''''9
_---Eovironrn.nul S.rvicll5 PhotCIgAmmetry
Surveying ConStrUdion Mlllilgement
EXCWSION6
Being All of Royal Patent 2506, Land Commission Award 5380, Apana 5 to Hulu
AtUkumehame,;~Island ofMaui, Hawaii
Beginning at the north comer of this pan:eI of land, the cootdinates of said point of beginning referred to
Govemment Survey Triangulation Station"KILEA" being 4,807.00 . feet South and 7,091:09 feet East and thence.
running by azimuths measured clockwise from true South:
.1. 314" 45' 13269
2. 3T 30' 73.95
3. 60·00' 14256
4. 155" 30' 81.84
5. 216" 00' 184.04
Description is based on recorded data which has been mathematically adjusted. The physical location of the above described Exclusion 6 is subject to a field sutvey and/or agreement between the affected property owner(s).
feet along LotA-1 ofUkumehame Agricultural Subdivision -Phase I;
feet along LotA-l ofUkumehame Agricultural Subdivision -Phase.!; ..
feet along Lot A-I of Ukwnehame Agricultural Subdivision -PhaseI;
feet along Lot A-I of Ukumehame Agricultural Subdivision - Phase I;
feet along Lot A~1 of Ukumehame Agricultural Subdivision - Phase I to the point of beginning and contilining an area of 0.52 Acre, more or less.
-1-
420 Waiakamilo Road Suite 411
Honolulu Hawaii 968'7"'941 Telephone 800 8421133
Fa. 800 8C2 1937 eNail [email protected])ITI
., R. M.TOWILL CORPORATION
Panning Engi"'-,g
Environmental Sen;ces Photogt.1II Nby _s~
Ccntructon ~t .
EXCLUSION 8
BEING:ALL OF ROYALPATENr 2506. LAND COMMISSION AWARD 5380,
APANA4TO HULU
AT UKUMEHAME.LAHAINA, ISLAND OF MAUl, HAWAII
Beginning at the south comer ofthis parcel of land, bcingalso along thc northeast side ofHonoapillani
Highway'lF.A.P. No. F-30(3)], the coordinates of said point of beginning-refeacd to GovemmentSurvey
Triangulation Station "KILEN' being5~526.14 feet South and 7,356.01 feet EaSt and thence running by azimuths.
measured clockwise from true South:
1. . 132' 50' 30"
2. 152' 30'
3. 20S' 55'
4. 307' 40'
s. 38' 10'
30.09
74.98
45.37
105.64
feet along the northeast side ofHonoapiilatU Highway [F.A.P. No. F-30(3)];
feet along the east side of Highway Remnant 22 .. A;
feet along the east side of Highway Remnant 22-A;
feet.along Lot A-1 ofUkumehame AgricUltural Subdivision -.Phase I; .
feet along Lot A-lofUkumehameAgricultural Subdivi$ion - Phase I and Iiighway Remnant 26-A to the point of beginning-and containing an area of 0.152 Acre, more or less.
Description is based on recorded data which has been mathematically adjusted. The physicalloc.ation of the above described Exclusion is subject to a field sUIVey and! or agreement between the affected property owner(s).
42'J Wa.akamilo Road Suite 411
Honolulu Hawaii '16817-4941 T elepnone 808 842 1133
Fax 80s 842 1937 ilMail [email protected]
-l.-
t!b -R.M. TOWILL CORPORATION'
S'NCE "30
PIantiing Enginiering
--&wirdnmental Services . PhotogralMll!try
Surveying Construction Mllllgement
73-5574 Maiau Street, Suite 11 . Kailua-Kona, Hawaii 96740 November 24, 2003
420 Waiakamilo Road Suite 411
Honolulu Hawaii 96817-4941 Telephone 808842 tt33
Fax 808 842 1937 eMail [email protected]
.Description Prepared by:
.R. M. TOWIlL CORPORATION
Russell Figueiroa Licensed Professional Land Surveyor Certificate. Nwnber 4729
-2-
~I ... ~~ ~ .
R. M. TOWIll CORPORATION
. Planning . Engineering
Environmental Services Pbotogrammetry
5uMying Construction Management
EXCLUSION'9
BEINGAPORTIONOFROYALPATENT-77757LANDCOMMISSIONAWARD6709TO~OPOLO
AT UKUMEHAME,LARAINA, ISLAND OF MAUI~ HA WAIl'
Beginning ,at the south comer of this parcel of land, being also along the northeast side of Honoapiilani
HighwaYc!"A.P. No. F-30(3)] , thecootdinates ofsaidpointof"beginnin.g referred to Govemment Survey
Triangulation station "KILEA"being 6,957.80 feet South and 9,014.39 feet East and thence running by azimuths .
measured clockwise from true South:
1. 127" 16', 245.92 ;feet along thenottheast side ofHonoapiilani Highway [F.A.P. No.F-30(3)J;
2. Thence along the ll0rtheast side of HonoapiilaniHighway (F.A.P. No. F-30(3)], on ,a curve to the right
3. 204'15'
4.298' 00'
5., 24" 15'
420Wa.akamilo Road Suit~ 411
Honolulu Hawaii 96817-4941 T eleplione 800 842 1133
Fax BOB 842 1937 eMaH rmtowillOi-one.com
69.41
429.03
"142.00
with a radius of 11,419.16 feet, the chord azimuth" , and distance being:
127" 45'11" 193.87 feet;
feet along LotA-1 ofUkumehame Agricultural Subdivision - Phase I; ,
feet along Lot A-1 ofUkumehameAgricultural Subdivision -Phase I;
feet along Exclusion 2, being all ofR~P, 1723, LC.Aws. 5124 &6408, Ap. 2 toJKa1aikini and Lot A-1 ofUkumehame'Agricultural Subdivision - Phase 1 to ,the point, of beginning and c:;ontainingan area of 1 ;045 Acres, mote or less.
,~, PJinning
'R.M. TOWILL CORPORATION
. Engineemg Environmental Services
Pholograrrwnetry Strieying
SINC:E '.3D ·Construetion Management
Description is based on recorded· data which has been mathemaricilly adjusted. The physical location of the above described Exclusion is subject to a field survey and/ or agreement between the affected property owner(s).
-~ ...
73;;:5574 Maiau Street; SUite 11 Kailua-Kona, Hawaii 96740 November 24, 2003
420 Wiliakamilo Raid Suite 411
Description Prepared by:
R. M. TOWILL CORPORATION
Russell Figueiroa Licensed Professional Land Surveyor Certificate Number 4729
-2-
LJa. R. M. TOWILL CORPORATION
Honolulu HawaIi 96817-4941 Telephone 808 842 1133
Fa. 808 842 1937 eMail [email protected] SiNce '930
Planning Engineering
~6Mronmental SelVites Photogrammetry
SuMying ConstrUction Man.gement
, .
i 1111 if i: t: - eo ••• '.- ...... .f
\.
\\ \~
\
\ \ ,
\
\ \
;;1 ,tH !, r i f
I it I
"I II . I fl! j - J i :
~ t:l ::: <. H i : ...
:.~ ~ ... ....
~ ; .;: '"I = 1
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COUNCIL OF THE COUNTY OF MAUl
WAILUKU, HAWAII 96793
CERTIFICATION OF ADOPTION
It is HEREBY CERTIFIED that RESOLUTION NO. 04-157 was adopted by the Council of the County of Maui, State of Hawaii, on the 5th day of November, 2004, by the following vote:
Dain P. Robert G.Riki JoAnne DennisA. MichaelJ. Wayne K. Joseph Charmaine MEMBERS KANE CARROLL HOKAMA JOHNSON MATEO MOLINA NISHIKI PONTANILLA TAVARES
Chair Vice-Ghair
ROLLCALL Aye Aye Aye Aye Aye Aye Excused Aye Aye
