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HomeMy WebLinkAbout12/15/2021 Council minutes COUNCIL MEETING DECEMBER 15, 2021 The Council Meeting of the Council of the County of Kaua`i was called to order by Council Chair Arryl Kaneshiro at the Council Chambers, 4396 Rice Street, Suite 201, Lihu`e, Kaua`i, on Wednesday, December 15, 2021 at 8:36 a.m., after which the following Members answered the call of the roll: Honorable Bernard P. Carvalho, Jr. Honorable Mason K. Chock Honorable Felicia Cowden Honorable Bill DeCosta Honorable Luke A. Evslin Honorable KipuKai Kuali`i Honorable Arryl Kaneshiro Council Chair Kaneshiro: Good morning. Today's meeting will be conducted pursuant to Governor Ige's COVID-19 Emergency Proclamation with the most recent relating to the Sunshine Law dated November 29, 2021. Please note that we have registered speakers for some of our agenda items this morning. I will read the agenda and take public testimony. Staff will appropriately incorporate the testimony into the record. After public testimony, we will proceed with our Council Meeting, followed by our Committee Meetings, and conclude with our Executive Session. APPROVAL OF AGENDA. Councilmember Kuali`i moved for approval of the agenda, as circulated, seconded by Councilmember DeCosta. Council Chair Kaneshiro: Are there any questions or is there any discussion from the Members? (No written testimony was received and no registered speakers requested to testify regarding this agenda item.) The motion for approval of the agenda, as circulated, was then put, and unanimously carried. Council Chair Kaneshiro: The motion is carried. Next item. MINUTES of the following meeting of the Council: December 1, 2021 Council Meeting COUNCIL MEETING 2 DECEMBER 15, 2021 Councilmember Kuali`i moved to approve the Minutes, as circulated, seconded by Councilmember Carvalho. Council Chair Kaneshiro: Are there any questions or is there any discussion on this item from the Members? (No written testimony was received and no registered speakers requested to testify regarding this agenda item.) The motion to approve the Minutes, as circulated, was then put, and unanimously carried. Council Chair Kaneshiro: The motion is carried. Next item. CONSENT CALENDAR: C 2021-268 Communication (11/30/2021) from Councilmember Carvalho and Councilmember De Costa, transmitting for Council consideration, a Resolution Acknowledging The Increasing Scourge Of Drugs In Our Community And Encouraging Heightened Enforcement Within Drug-Free Zones. Councilmember Kuali`i moved to receive C 2021-268 for the record, seconded by Councilmember Cowden. Council Chair Kaneshiro: Are there any questions or is there any discussion from the Members? (No written testimony was received and no registered speakers requested to testify regarding this agenda item.) The motion to receive C 2021-268 for the record, was then put, and unanimously carried. Council Chair Kaneshiro: The motion is carried. Let us skip to page 4 and read Executive Session for ES-1067. There being no objections, ES-1067 and ES-1068 were taken out of order. EXECUTIVE SESSION: ES-1067 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4 and 92-5(a)(4), and Kaua`i County Charter Section 3.07(E), the Office of the County Attorney requests an Executive Session to provide a briefing to approve a settlement amount as part of the Opioid Litigation against McKesson, Cardinal Health, AmerisourceBerge, Janssen Pharmaceuticals, Inc., and Johnson & Johnson, and related matters. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item. COUNCIL MEETING 3 DECEMBER 15, 2021 ES-1068 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4 and 92-5(a)(4), and Kauai County Charter Section 3.07(E), the Office of the County Attorney requests an Executive Session to provide a briefing as it relates to the New Kaua`i Landfill Siting, and related matters. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item. Councilmember Kuali`i moved to convene into Executive Session for ES-1067 and ES-1068, seconded by Councilmember Chock. Council Chair Kaneshiro: Are there any questions or discussion from the Members? May I have a roll call vote to go into Executive Session? (No written testimony was received and no registered speakers requested to testify regarding these agenda items.) The motion to convene into Executive Session for ES-1067 and ES-1068 was then put, and carried by the following vote: FOR EXECUTIVE SESSION: Carvalho, Chock, Cowden, DeCosta Evslin, Kuali`i, Kaneshiro TOTAL— 7, AGAINST EXECUTIVE SESSION: None TOTAL— 0, EXCUSED & NOT VOTING: None TOTAL— 0, RECUSED & NOT VOTING: None TOTAL— 0. Ms. Fountain-Tanigawa: Seven (7) ayes. Council Chair Kaneshiro: As mentioned earlier, we will take this Executive Session now, due to Special Counsel's availability, then we will be back for the rest of the Council Meeting. There being no objections, the meeting recessed at 8:39 a.m., to convene in Executive Session. The meeting reconvened at 10:17 a.m., and proceeded as follows: Council Chair Kaneshiro: Welcome back. We are on the bottom of page 1. COMMUNICATIONS: C 2021-269 Communication (11/30/2021) from the Executive on Transportation, requesting Council approval to receive and expend the Federal Transit Administration (FTA) Section 5311 American Rescue Plan Act of 2021 (ARP) grant, in the amount of$1,879,773.00, and to indemnify the FTA. This Section 5311 grant will COUNCIL MEETING 4 DECEMBER 15, 2021 be used to support the continued operation of essential public bus transit services for the County of Kaua`i. Councilmember Carvalho moved to approve C 2021-269, seconded by Councilmember Kuali`i. Council Chair Kaneshiro: Are there any further questions from the Members? Is there any final discussion from the Members? (No written testimony was received and no registered speakers requested to testify regarding this agenda item.) The motion to approve C 2021-269 was then put, and unanimously carried. Council Chair Kaneshiro: The motion is carried. Next item. C 2021-270 Communication (12/01/2021) from the Executive on Aging, requesting Council approval to apply for, receive, and expend Year 2 grant funding awarded by the Corporation for National and Community Service to the County of Kaua`i, Agency on Elderly Affairs, Kaua`i Retired and Senior Volunteer Program (RSVP) for the three-year period of April 1, 2021 to March 31, 2024, in the amount of$75,000.00 per year, combined with matching County funds in the amount of$181,577.00, to assist Kaua`i RSVP in carrying out the national service program as authorized by the Domestic Volunteer Service Act of 1973, as amended (42 U.S.C., Chapter 22). Councilmember Kuali`i moved to approve C 2021-270, seconded by Councilmember Carvalho. Council Chair Kaneshiro: Do we have any questions or discussion from the Members? Are there any final discussion? Councilmember Cowden. Councilmember Cowden: I really meant to say thank you also to Celia on the last one. I want to thank the Agency on Elderly Affairs and the Transportation Agency for being diligent to get extra funding. I appreciate them for the good work that they do on an ongoing basis. Council Chair Kaneshiro: Is there anyone else? (No written testimony was received and no registered speakers requested to testify regarding this agenda item.) The motion to approve C 2021-270 was then put, and unanimously carried. Council Chair Kaneshiro: The motion is carried. Next item. C 2021-271 Communication (12/03/2021) from the County Attorney on behalf of the Housing Director, requesting authorization to expend funds up to $150,000.00 to retain Special Bond Counsel to advise the Housing Agency on the issuance of tax-exempt Private Activity Bonds to finance the development of affordable housing. COUNCIL MEETING 5 DECEMBER 15, 2021 Councilmember Kuali`i moved to approve C 2021-271, seconded by Councilmember DeCosta. Council Chair Kaneshiro: Adam, please give us a briefing on this item. There being no objections, the rules were suspended. ADAM P. ROVERSI, Housing Director (via remote technology): Aloha, Chair. Adam Roversi from the Housing Agency. Every county in Hawai`i has a statutory authority to issue a set dollar amount in tax-exempt private activity bonds—that is set in State law. Historically, the County has never utilized its private activity bond capacity—that goes for most counties, to be honest. When the counties defer the utilization of their private activity bonds, it simply goes to the State to add to the State's statutorily allocated bonding capacity. Those are not all used solely for housing, but broadly they are and they are administered through the Hawai`i Housing Finance Development Corporation (HHFDC). Developers and projects apply annually to HHFDC in February for utilizations of portions of these funds, as well as others, and low-income housing tax credits. We are interested in exploring issuing our available private activity bonds directly, so that we can control the timing, the usage of those funds, and which projects receive them on Kaua`i. Historically, at least in the last eight (8) to ten (10) years, Kaua`i has generally done fairly well in the statewide application process, but last year we received no awards for Kaua`i projects through the State funding system, either for bonds or for low-income housing tax credits. By bringing this in-house, we will be able to avoid that, and ensure that Kaua`i projects get the funds. That does not preclude Kaua`i projects from still applying for various other source of funding through HHFDC. It is not explained much in our memorandum. We view this as a pilot program that could potentially lead to multiple other bond funding opportunities. So private activity bonds are a special category of tax-exempt funds. There are multiple other bond types: general obligation bonds, that you are likely familiar with, as well as revenue bonds that are the payments of which are guaranteed through whatever project it is you are funding. We would also be interested in exploring those options in the future. We consider this as the low-hanging fruit of the bond world, in that it is low-risk for the County, it does not impact the County's full faith and credit, it does not impact the County's credit rating. It simply is a pass-through funding vehicle and the developer that receives the funds would be "on the hook" for the funds, not the County itself, and the County's General Fund would not be obligated. We would like to pursue this as a pilot project, and if successful, and we build internal capacity and understanding for the issuance of bonds, I would like to see this as a first step in exploring wider and more expansive bond opportunities. More importantly, it is noted in the tail end of my memorandum—what we are asking for now is the first step to procure bond counsel to give us professional advice. The actual issuance of bonds will require future county involvement on the actual dollar amounts on the projects. So at this point, you are not approving the issuance of millions of dollars of bonds, we are just taking the first step to be sure we understand the process, its pros and cons, so we can make a clear decision on moving forward. Council Chair Kaneshiro: Councilmember Cowden, then Councilmember Evslin. COUNCIL MEETING 6 DECEMBER 15, 2021 Councilmember Cowden: We need a special counsel because we do not have this strength internally in our legal department, is that right? That is why we get a special counsel. Mr. Roversi: County Attorney Matthew Bracken may want to speak to that, but generally that is correct, yes. These tax-exempt bonds paired with low-income housing tax credits are a very specialized financial product and I am sure the Office of the County Attorney could figure it out after a great deal of study, effort, and training, but it is better to find a professional financial counsel, I think Matt would agree, that has a lot of experience with this particular financial product. Councilmember Cowden: Okay. I do not know if Matt was going to make a comment. Just so I am clear, we would be raising our own funds, it is not like we are competing with the private partners who have been helping us build housing, we are not competing with them for funds out there, we are trying to create our own collection of funding, is that correct? Mr. Roversi: More or less. We will not be competing with private developers in any way. We are offering our private developer partners an additional source of funding, in addition to the typical funding sources that they would seek through the State application process. On a certain level, we are taking away a little bit of what the State would otherwise be issuing, and we are going to issue it ourself, but we have two point four one percent (2.41%) of the State's total, so that is a "drop in the bucket" for the total funding that the State has available. Councilmember Cowden: Okay. How big do we anticipate these private activity bonds to be? Do we have a range like ten million dollars ($10,000,000), two million dollars ($2,000,000), twenty million dollars ($20,000,000)? Do we have any idea at this point? Mr. Roversi: Sure, we can almost nail that down exactly. So, the County of Kaua`i is allocated two point four one percent (2.41%) of the State's total bond capacity each year. The State's total capacity in 2020 was three hundred twenty-one million seven hundred seventy-five thousand dollars ($321,775,000), so our two point four one percent (2.41%) cut of that comes out to seven million seven hundred fifty-four thousand dollars ($7,754,000). Under the law, we are allowed to accumulate our annual capacity for up to three (3) years. It does not mean that we have to, but we could accumulate that seven million seven hundred fifty-four thousand dollars ($7,754,000) for a period of three (3) years, then we would end up with a total capacity of twenty-three million two hundred thousand dollars ($23,200,000). Councilmember Cowden: Okay, I am confused. The private activity bond, I thought that is where we are going out into the market to get more money, not just what the State is giving us, right? Mr. Roversi: The State is not really giving us anything. Councilmember Cowden: Okay. COUNCIL MEETING 7 DECEMBER 15, 2021 Mr. Roversi: We have a statutory right to two point four percent (2.4%) of the Federally described capacity for the State of Hawai`i. We have traditionally not used our capacity; we have just let the State take it. Councilmember Cowden: Okay. Mr. Roversi: So we are contemplating retaining our statutorily authorized capacity and issuing those bonds ourselves, so that we can control what projects they go to, what projects they fund, the timing of the issuance of the funds, and can assure that those funds stay on Kaua`i. Councilmember Cowden: Okay, I understand. Thank you. Council Chair Kaneshiro: Councilmember Evslin. Councilmember Evslin: Thank you, Chair. Adam, what are some of the parameters for qualified private activities? Mr. Roversi: I your question apologize, was muffled, could you repeat it, please? Councilmember Evslin: What are some of the parameters around? What would be a qualified private activity that would qualify for the use of the funds? Income limits, infrastructure, what would it be for? Mr. Roversi: There is a fairly long list of qualified activities in the federal law, but affordable housing projects are clearly on point as a qualified activity. In order to be tax exempt they have to meet certain affordability requirements. I do not have the exact formula in front of me. There are several different choices. I am making this up, just as an example, but it is something along the lines of you can do forty percent (40%) of the units at fifty percent (50%) and below Area Median Income (AMI), or eighty percent (80%) of the units at a higher AMI. I could get back to you with the specific income requirements, but it does require a percentage. All of the homes that you would produce with these bonds would need to be affordable, that is why they are tax exempt, but they can be affordable at different price points depending on which available formula you choose to work with, and I can provide exactly what those are, but I do not have them in front of me. Councilmember Evslin: It is good to know in general that not all have to be affordable in some capacity. In practice, how does it work? A developer would come and apply to the County for use of those funds, or would we be pitching projects to developers? Mr. Roversi: It could work either way. It is up to the County whether we want to create some kind of competitive process, or whether we simply want to select what we think is the worthiest development and offer the funds directly to them. The County, as I understand it, and this is one of the reasons why we want to procure bond counsel, so we are clear on all of these details, the County acts as just a pass-through entity. The bond counsel organizes the bond issuance, COUNCIL MEETING 8 DECEMBER 15, 2021 and a bank provides the funds and organizes the sale of the bonds, the sale of the bonds creates proceeds, which are handed to the developer in the form of a loan, essentially, and the developer is on the hook to pay back the bank for the issuance of the bonds. The County acts as a middle person and does not take on any real financial responsibility other than the cost of issuance, which as I understand it, is the same as the cost of issuance for the State. So, the State keeps a percentage for their costs, the County could do the exact same thing, the bank takes a small percentage for their costs. Once we procure counsel, we can give a much fuller presentation to the County Council with all the details, the dollar amounts, the administrative costs associated with the issuance, et cetera. Councilmember Evslin: Thank you. It will be good to learn more as you move forward. My last question, and it is okay if you do not have the answer, but it says clearly that there is no real risk to our bond rating, and they are not guaranteed for the General Fund at any capacity, but is there any sort of risk? If, say, we get the full two point four percent (2.4%) allocation, then do not spend it down over the three (3) years, is there any risk to the County for not spending it? Mr. Roversi: There is no financial risk. The State would be unhappy if we retained our capacity and then essentially wasted it by not using it, because it expires after three (3) years. So if you do not act, you have wasted statewide available funding for affordable housing. But we would not be financially penalized. Councilmember Evslin: Thank you. Council Chair Kaneshiro: Are there any other questions from the Members on this? Is there any final discussion? Councilmember Evslin. There being no objections, the meeting was called back to order, and proceeded as follows: Councilmember Evslin: I want to thank Adam, this is huge. I think we have all talked about it or heard him talk about it in some sense, the need to utilize bond funding to develop affordable housing. I know that the reason the County has not in the past, is that it is a big burden on the Housing Agency to try and figure this out and administer the program. So I am really excited and appreciative that Adam folks are willing to push through. Hopefully, once we work through the hurdles and get this running, it will be a huge and vital important source of funding, and not only these private activity bonds, but utilizing other sources of bonds for infrastructure and other things, as well. Thank you. Council Chair Kaneshiro: Councilmember Cowden. Councilmember Cowden: I also want to thank Adam for explaining it to me, because I think there are other sources where we can start to raise money for housing, which I have spoken to him. I just wanted to make sure that is something that could function in that way. So I think it is a good direction for us to be able to COUNCIL MEETING 9 DECEMBER 15, 2021 grab on to what we can to address the most urgent need in our community. I appreciate it. Council Chair Kaneshiro: Is there anyone else? (No written testimony was received and no registered speakers requested to testify regarding this agenda item.) The motion to approve C 2021-271 was then put, and unanimously carried. Council Chair Kaneshiro: The motion is carried. Next item. CLAIMS: C 2021-272 Communication (12/01/2021) from the County Clerk, transmitting a claim filed against the County of Kaua`i by Mario Yriarte, for damage to his vehicle, pursuant to Section 23.06, Charter of the County of Kaua`i. C 2021-273 Communication (12/02/2021) from the County Clerk, transmitting a claim filed against the County of Kauai by Wilfred Kaui, Jr., for personal injury, injury to his horse, and related medical bills, pursuant to Section 23.06, Charter of the County of Kaua`i. C 2021-274 Communication (12/02/2021) from the County Clerk, transmitting a claim filed against the County of Kaua`i by Aaron Swanson, for damage to his vehicle, pursuant to Section 23.06, Charter of the County of Kaua`i. Councilmember Kuali`i moved to refer C 2021-272, C 2021-273, and C 2021-274 to the Office of the County Attorney for disposition and/or report back to the Council, seconded by Councilmember Cowden. Council Chair Kaneshiro: Are there any questions or discussion from the Members? (No written testimony was received and no registered speakers requested to testify regarding these agenda items.) The motion to refer C 2021-272, C 2021-273, and C 2021-274 to the Office of the County Attorney for disposition and/or report back to the Council was then put, and unanimously carried. Council Chair Kaneshiro: The motion is carried. Next item. COMMITTEE REPORTS: PLANNING COMMITTEE: COUNCIL MEETING 10 DECEMBER 15, 2021 A report (No. CR-PL 2021-05) submitted by the Planning Committee, recommending that the following be Approved as Amended on second and final reading: "Bill No. 2831 —A BILL FOR AN ORDINANCE AMENDING ZONING CONDITIONS IN ORDINANCE NO. PM-2006-383, AS AMENDED BY ORDINANCE NO. PM-2009-394, RELATING TO ZONING DESIGNATION IN NAWILIWILI, KAUAI (Tower Kauai Lagoons Sub 1, LLC; 2014 Kaua i Lagoons Golf, LLC; Tower Kauai Lagoons Land, LLC; Tower Kauai Lagoons Sub 7, LLC, Applicant) (ZA-2021-3)," Councilmember Kuali`i moved for approval of the report, seconded by Councilmember Carvalho. Council Chair Kaneshiro: Are there any questions or discussion from the Members? (No written testimony was received and no registered speakers requested to testify regarding this agenda item.) The motion for approval of the reports was then put, and unanimously carried. Council Chair Kaneshiro: The motion is carried. Next item. COMMITTEE OF THE WHOLE: A report (No. CR-COW 2021-12) submitted by the Committee of the Whole, recommending that the following be Approved on second and final reading: "Bill No. 2839 — A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. B-2021-877, AS AMENDED, RELATING TO THE OPERATING BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2021 THROUGH JUNE 30, 2022, BY REVISING THE AMOUNTS ESTIMATED IN THE GENERAL FUND (General Liability— $900,000.00)," A report (No. CR-COW 2021-13) submitted by the Committee of the Whole, recommending that the following be Approved on second and final reading: "Bill No. 2840 — A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. B-2021-877, AS AMENDED, RELATING TO THE OPERATING BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2021 THROUGH JUNE 30, 2022, BY REVISING THE AMOUNTS ESTIMATED IN THE GENERAL FUND (County of Kauai Transient Accommodations Tax— $9,000,000.00)," COUNCIL MEETING 11 DECEMBER 15, 2021 Councilmember Kuali`i moved for approval of the reports, seconded by Councilmember Carvalho. Council Chair Kaneshiro: Are there any questions or discussion from the Members? (No written testimony was received and no registered speakers requested to testify regarding these agenda items.) The motion for approval of the report was then put, and unanimously carried. Council Chair Kaneshiro: The motion is carried. Next item. RESOLUTION: Resolution No. 2021-51 — RESOLUTION ACKNOWLEDGING THE INCREASING SCOURGE OF DRUGS IN OUR COMMUNITY AND ENCOURAGING HEIGHTENED ENFORCEMENT WITHIN DRUG-FREE ZONES Councilmember Kuali`i moved to approve Resolution No. 2021-51, seconded by Councilmember Carvalho. Council Chair Kaneshiro: I will let Councilmember Carvalho explain the Resolution, then after that we have a video from the Mayor that we will play. Councilmember Carvalho: First of all, mahalo for the opportunity. This Resolution ties right into some of the discussions we have been having, primarily, trying to take it up another step. It is happening in our community, it is happening at various parts of our community, but it is honing in on the most recent activity that happened at one of our ballfield areas in Kapa`a. So with this Resolution, I am hoping that we can take it to the next level. It is just the start to heighten and let everyone know that should you decide to do this in these areas, it is not just a slap on the wrist anymore,we need to take it to the next level. We have tried our best overall as leaders to do prevention work and to support that, but it is happening as we speak today, it is happening in various parts of our communities but more specifically in this discussion. So when it was brought to my attention, again, personally, where it happened, my grandson who is seven (7) years old was playing football. So it is not just about what is happening...but all the surrounding youth that could be affected by this kind of activity within our parks and schools. I know we have drug-free zones, I know we have other areas that are already designated, but it is still being, I will use the word"infested," if you will, with this kind of use. I believe we need to stand united in this. Administration is following. I have talked to Chief Raybuck, and of course Councilmember DeCosta on the Department of Education side, so all of this stuff is happening. So this Resolution in a nutshell is really to begin the process of taking it to the next level-heightening the consequences that will occur or happen should you decide to utilize drugs within these areas, and specifically park areas, as well as the COUNCIL MEETING 12 DECEMBER 15, 2021 schools, and that is laid out in the Resolution. I appreciate our Mayor coming out with his Proclamation and uniting together and working closely with Chief Raybuck and the team there. Councilmember DeCosta. Councilmember DeCosta: Thank you, Councilmember Carvalho, it was a pleasure working with you. Actually, all of the other five (5) colleagues here, we all have that same mindset, although we could not discuss it with them, you all share that passion for our children, and they are our future leaders. It is not so much what we tell them, it is what we show them, and I am so hurtful to let these keiki see these things in a safe zone where they can play on a slide or practice foothall, so heightening the awareness. I think this is a great Resolution, message, and stance. I would like to say Councilmember Carvalho and the rest of the Councilmembers, thank you. Councilmember Carvalho: Again, to our fellow Councilmembers, thank you for being there too, I know you folks have the same passion. Also, I wanted to mention the leagues like pop warner and others wanted to join in too, to stand forward and make a statement to everyone, if you decide to do this, this is what will happen to you, in that tone, if you will. Mahalo, to all of my fellow Councilmembers and everyone at the Administration. This is just the beginning. Thank you. Council Chair Kaneshiro: With that, I am going to suspend the rules and play the Mayor's video, then we will open up for questions. There being no objections, the rules were suspended. DEREK S.K. KAWAKAMI, Mayor (via remote technology video): Aloha, this is Mayor Derek Kawakami. On behalf of the Office of the Mayor, we want to first and foremost offer our heartfelt condolences to the families of the four (4) individuals that have lost their lives to Fentanyl. I want to commend Councilmembers Carvalho and DeCosta, and all of our first responders, and of course, the whole community that is trying to wrap its arms around this problem that we just cannot solve on ourselves. With that being said, we do have a Proclamation and we do have a commitment to make sure that we are keeping these places safe for our keiki and for our kupuna. And once again, we want to thank the County Council for offering this Resolution. Thank you very much. Council Chair Kaneshiro: Councilmember Cowden. There being no objections, the meeting was called back to order, and proceeded as follows: Councilmember Cowden: Thank you for doing this. I definitely have been agreeing that we need to help protect our people and that safe places like parks are not the right place to be doing it. A couple of questions, when we say we are going COUNCIL MEETING 13 DECEMBER 15, 2021 to heighten it, I am wondering what that means, does that mean it is more likely for an arrest, or stronger prosecution, or stronger sentences? What is allowable? Do we have more police on that beat? Councilmember Carvalho: In speaking with Chief Raybuck and the team members, that is exactly what it is. It is not just a slap on the wrist. You are going to have a stricter type of sentencing if you do go through the process. We are working on all of that now, to come up with the final, but it is going to be very strict. Councilmember Cowden: In terms of the sentencing, is that something that...does the State have to decide, because sentencing is beyond the scope of the Council. But we could be sending a letter to the State saying we want, if things happen in proximity to these safe spaces, certainly, schools, then we can send a letter to prosecution that we would expect less "dismiss without prejudices." Councilmember DeCosta: It is already showing the importance by just creating this Resolution on our behalf. It is showing the importance at the State level in what should happen if someone is using drugs in the safe zone. The Chief made it apparent that it is going to be more awareness of his officers patrolling the area making sure that it is a safe zone area throughout Kaua`i. Councilmember Cowden: Okay. I would imagine that would include neighborhood watches or something. Councilmember Carvalho: All of it. It ties into everything. Councilmember Cowden: Okay. Council Chair Kaneshiro: Are there any other questions from the Members? Is there any final discussion from the Members? Council Vice Chair Chock. Councilmember Chock: Thank you, Chair. Thank you, Councilmembers, for the introduction of the Resolution. I think it is important for us to have unified voice on what our expectations are as a community, but also working with our public safety departments and ensuring safety broadly. I will take the opportunity in this discussion to mention the opposite side of response, which is what you mentioned, Councilmember Carvalho, in terms of prevention, which is a big part of what we are all committed. The mental health crisis is connected to this and as a community to have those opportunities to have service and ways for our community to interface with services is really key. So, I have been working with Chief Raybuck and other providers on platforms that are accessible to our community and our public safety officers, to be able to have resources available to them and connect things like CredibleMind platform that is something online that connects families and our COUNCIL MEETING 14 DECEMBER 15, 2021 students. I think collectively if we can combine these strategies, we will be more successful, so I fully support it. Thank you. Council Chair Kaneshiro: Councilmember Kuali`i. Councilmember Kuali`i: I wanted to thank Councilmember Carvalho and Councilmember DeCosta for bringing this Resolution forward, and also the Mayor for his Proclamation. It is always important for us to highlight and create awareness. This one "Whereas" that talks about twenty-three (23) occasions since just September, so just in the last three (3) months, where the anti-opiod medication NARCAN was used. Then to hear of the four (4) deaths, a tragic loss of young people, but thankfully, too, for NARCAN that many lives were saved, as well. I think this is really important. Many of us know firsthand the effects of all the different addictions and the young lives that have been taken. Awareness is definitely the first step. The goal of highlighting...obviously there is this law Hawaii Revised Statutes (HRS) 712-1249.6 that talks about the promoting of a controlled substance, but in all of our parks and different areas where a lot of the young people are, it is not just about the sale of those drugs, but also the use of those drugs, and all the negative things that come with that. Hats off to Kaua`i Police Department (KPD) and other first responders, and the important work that they keep doing. It is always important to create this awareness. Thank you. Council Chair Kaneshiro: Is there anyone else? Councilmember Evslin, then Councilmember DeCosta. Councilmember Evslin: Thank you to the introducers of this. Obviously, very important. I think as we all discussed and know Fentanyl has changed the game in some sense in how deadly it is and how it can come out of the blue in some sense. The users of drugs not knowing that there is this incredibly deadly substance that is laced with whatever drug they are taking. Education, awareness, and enforcement are all really critical. Also, we all have a role to play in some sense. We have talked about this before, but the Kalena Park revitalization is such a good example of a place that was a haven for drug use and drug dealing. If you went by there at nighttime or even in the middle of the day, there was a lot of activity in the park. A dedicated group of community members partnering with the County revitalized that park, and KPD said recently that there is a fifty-two percent (52%) decline in 9-1-1 calls to the park. That activity has totally been displaced. I think there is good evidence around the country that when you revitalize a place like that and displace that kind of activity, it is not like it moves to the next corner, oftentimes, it just goes away. You do not see those drug dealers in front of Kaua`i Beer Company or anything; in some sense they are just gone. So, I do think it is on all of the above approach and we have a role to play there. Thank you. COUNCIL MEETING 15 DECEMBER 15, 2021 Council Chair Kaneshiro: Councilmember DeCosta, then Councilmember Cowden. Councilmember DeCosta: I just wanted to individually thank Mayor Kawakami. Your plate is so full and for you to come out with this Proclamation and feedback with what has been happening, again, it is not just Councilmember Carvalho, but all seven (7) of us shared and have talked about it at lunch, and it is just two (2) people introducing it, but it is the seven (7) of us who feel deep in our hearts. We did not get a chance to mention, but Councilmember Carvalho and I have spent many meetings with Superintendent Paul Zina, and he is on board to keep the Department of Education (DOE) in the safe zone. The few community parks that are attached like Waimea High School has that County park where the high school kids practice baseball and football, the meetings we had with the Chief, and collaborating on all of that. Moving deeper, maybe even getting our State health nurses Fentanyl certified and have the NARCAN spray. It is the movement that we are aware of and what we are going to do for the community and where we get it from. Big mahalo for all the players who came to the table and made this Proclamation and Resolution happen. Thank you. Council Chair Kaneshiro: Councilmember Cowden. Councilmember Cowden: I, also, want to thank our whole community that looks to create solutions. We have the good programs in the schools. We have some really wonderful officers in the schools—the school resource officers, but particularly those that create other ways for people to be inspired and happy. We need to out create the problem. I know Johnson & Johnson's new product Fentanyl that they developed has been the recent scourge in our community, but as it is off marketed and put in the mix with other things, but how we can help in any way, avoiding these drugs are really critical for us moving forward. I still care for all the people who are struggling. They are friends and family and most of them have gone through some serious grief or injury, they are not criminals, but if you are selling it, you are criminal. We need to help people know that they cannot be having that activity, especially where there is other vulnerable people. So, I very much support this. Council Chair Kaneshiro: Is there anyone else? (No written testimony was received and no registered speakers requested to testify regarding this agenda item.) The motion for adoption of Resolution No. 2021-51 was then put, and carried by the following vote: COUNCIL MEETING 16 DECEMBER 15, 2021 FOR ADOPTION: Carvalho, Chock, Cowden, DeCosta Evslin, Kuali`i, Kaneshiro TOTAL— 7, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: None TOTAL — 0, RECUSED & NOT VOTING: None TOTAL— 0. Ms. Fountain-Tanigawa: Seven (7) ayes. Council Chair Kaneshiro: The motion passes. Next item. BILLS FOR SECOND READING: Bill No. 2044—A BILL FOR AN ORDINANCE TO AMEND OPEN DISTRICT DESIGNATIONS ON ZONING MAP ZM-PR700 AT PRINCEVILLE, KAUAI, HAWAI`I Councilmember Kuali`i moved to receive Bill No. 2044 for the record, seconded by Councilmember Carvalho. Council Chair Kaneshiro: This was the original Bill that was sent to the Planning Department. Once it got through Planning, the Bill that came back to us got revised, changed, passed at Planning, came to Council, passed at Council, and we kept this Bill alive just in case we wanted to go back to it, but the bill that the Council found was appropriate has passed already, so now this is a housekeeping item to receive the original Bill that we had on the floor. Are there any questions or discussion from the Members? (No written testimony was received and no registered speakers requested to testify regarding this agenda item.) The motion to receive Bill No. 2044 for the record was then put, and unanimously carried. Council Chair Kaneshiro: The motion passes. Next item. Bill No. 2831, Draft 1 —A BILL FOR AN ORDINANCE AMENDING ZONING CONDITIONS IN ORDINANCE NO. PM-2006-383, AS AMENDED BY ORDINANCE NO. PM-2009-394, RELATING TO ZONING DESIGNATION IN NAWILIWILI, KAUAI (Tower Kauai Lagoons Sub 1, LLC; 2014 Kauai Lagoons Golf, LLC; Tower Kauai Lagoons Land, LLC; Tower Kauai Lagoons Sub 7, LLC, Applicant) (ZA-2021-3) Councilmember Kuali`i moved to approve Bill No. 2831, Draft 1 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Councilmember Chock. COUNCIL MEETING 17 DECEMBER 15, 2021 Council Chair Kaneshiro: I believe we have a housekeeping amendment on it. Councilmember Chock: Yes, thank you, Chair. Councilmember Chock moved to amend Bill No. 2831, Draft 1, as circulated, and as shown in the Floor Amendment, which is attached hereto as Attachment 1, seconded by Councilmember Kuali`i. Councilmember Chock: Councilmembers, I have two (2) amendments to this draft Bill; the first is to replace the description for Lot 1-A to be changed to Proposed Lot 1-A, so it is a correction. The second, to replace all instances of what is referred to as "guest cottages" with the term "Guest Houses." Council Chair Kaneshiro: Are there any questions from the Members? Again, this is a housekeeping item to clean up and make sure the language is consistent throughout. Again, identifying a lot that is not necessarily there yet, but it is a proposed lot 1-A. Are there any questions? If not, any discussion on the amendment? The motion to amend Bill No. 2831, Draft 1, as circulated, and as shown in the Floor Amendment, which is attached hereto as Attachment 1 was then put, and unanimously carried. Council Chair Kaneshiro: Back to the main motion as amended. Are there any questions on the Bill as amended? Is there any final discussion from the Members? Councilmember Cowden. Councilmember Cowden: I want to thank Councilmember Evslin and Vice Chair Chock for the diligent work that you did on this, and to the developer for working with you, because even though these are little nits and picks, they really do matter twenty (20) years from now. Going through that extra effort to make sure the history of commitments on this project is clarified, so there is not a problem in the future. I think future Councils will be thankful, future communities will be thankful, so thank you very much. Council Chair Kaneshiro: Is there anyone else? If not, roll call vote. (No written testimony was received and no registered speakers requested to testify regarding this agenda item.) The motion to approve Bill No. 2831, Draft 1, as amended to Bill No. 2831, Draft 2, on second and final reading, and that it be transmitted to the Mayor for his approval was then put, and carried by the following vote: COUNCIL MEETING 18 DECEMBER 15, 2021 FOR APPROVAL: Carvalho, Chock, Cowden, DeCosta, Evslin, Kuali`i, Kaneshiro TOTAL— 7, AGAINST APPROVAL: None TOTAL— 0, EXCUSED & NOT VOTING: None TOTAL— 0, RECUSED & NOT VOTING: None TOTAL — 0. Ms. Fountain-Tanigawa: Seven (7) ayes. The motion passes. Bill No. 2839 — A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. B-2021-877, AS AMENDED, RELATING TO THE OPERATING BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2021 THROUGH JUNE 30, 2022, BY REVISING THE AMOUNTS ESTIMATED IN THE GENERAL FUND (General Liability— $900,000.00) Councilmember Kuali`i moved to approve Bill No. 2839 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Councilmember Carvalho. Council Chair Kaneshiro: Are there any questions or discussion from the Members? If not, roll call vote. (No written testimony was received and no registered speakers requested to testify regarding this agenda item.) The motion to approve Bill No. 2839 on second and final reading, and that it be transmitted to the Mayor for his approval was then put, and carried by the following vote: FOR APPROVAL: Carvalho, Chock, Cowden, DeCosta, Evslin, Kuali`i, Kaneshiro TOTAL— 7, AGAINST APPROVAL: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL— 0, RECUSED & NOT VOTING: None TOTAL— 0. Ms. Fountain-Tanigawa: Seven (7) ayes. The motion passes. Bill No. 2840 — A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. B-2021-877, AS AMENDED, RELATING TO THE OPERATING BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2021 THROUGH JUNE 30, 2022, BY REVISING THE AMOUNTS ESTIMATED IN THE GENERAL FUND (County of Kaua`i Transient Accommodations Tax — $9,000,000.00) Councilmember Kuali`i moved to approve Bill No. 2840 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Councilmember Cowden. COUNCIL MEETING 19 DECEMBER 15, 2021 Council Chair Kaneshiro: Are there any questions or discussion from the Members? Councilmember Cowden. Councilmember Cowden: For the sake of the public, because nine million dollars ($9,000,000) is a lot of money, for those who have not been following, this is really just the movement of the Transient Accommodation Tax funding that we would have been getting from the State is now being shifted to some part of the County. We have talked about it extensivelyand are in agreement that we have a Y g new plan. So, it is the same money, it will be utilized the same way. Council Chair Kaneshiro: Is there any other discussion from the Members? If not, roll call vote. (No written testimony was received and no registered speakers requested to testify regarding this agenda item.) The motion to approve Bill No. 2840 on second and final reading, and that it be transmitted to the Mayor for his approval was then put, and carried by the following vote: FOR APPROVAL: Carvalho, Chock, Cowden, DeCosta, Evslin, Kuali`i, Kaneshiro TOTAL— 7, AGAINST APPROVAL: None TOTAL— 0, EXCUSED & NOT VOTING: None TOTAL— 0, RECUSED & NOT VOTING: None TOTAL— 0. Ms. Fountain-Tanigawa: Seven (7) ayes. The motion passes. Council Chair Kaneshiro: This concludes the business on our agenda. Not seeing or hearing any objections, this Council Meeting is now adjourned. We have one (1)Executive Session left,which we will take after our Committee Meeting. Coming up, we will have our Committee Meeting, starting with the Planning Committee. ADJOURNMENT. There being no further business, the Council Meeting adjourned at 10:58 a.m. Respectfully submitted, JADE K. FOUNTAIN-TANIGAWA County Clerk :jY (December 15, 2021) FLOOR AMENDMENT Bill No. 2831, Draft 1, Relating to Zoning Designation in Nawiliwili, Kaua`i Introduced by: MASON K. CHOCK, Councilmember Amend Bill No. 2831, Draft 1, as follows: 1. Replace the description for "LOT 1-A" with the attached description for "PROPOSED LOT 1-A." 2. Replace all instances of"guest cottages" with "Guest Houses." V:\AMENDMENTS\2021\FA-2831d1 MC_AMK_Jy.docx PROPOSED LOT 1-A All of that portion of a certain parcel of land (being portion(s) of the land(s) described in and covered by Royal Patent Number 4480, Land Commission Award Number 7713, Apana 2, Part 1 to Victoria Kamamalu), being PROPOSED LOT 1-A, being a portion of Lot 2-A-1, as shown on Kaua`i County Subdivision File No. S-2019-11, and a portion of Lot 5-A, as shown on Kaua`i County Subdivision File No. S-2008-24, situate, lying and being at Kalapaki, District of Lihu`e, Island and County of Kaua`i, State of Hawaii, and thus bounded and described as per survey dated November 11, 2020: Beginning at the Northeast corner of this piece of land, being a south corner of Lot 5-A-1, the coordinates of said point of beginning referred to Government Survey Triangulation Station "Kalepa" being 12,761.28 feet south and 6,152.45 feet east, and running by azimuths measured clockwise from true South: 1. 1° 14' 15" 209.51 feet along Lots 5-A-1 and 2-A; Thence along the North side of Kahilipulu Way on a curve to the left with a radius of 262.00 feet, the chord azimuth and distance being: 2. 77° 39' 42" 129.91 feet; 3. 63° 18' 30" 622.11 feet along the North side of Kahilipulu Way; Thence along the North side of Kahilipulu Way, on a curve to the right with a radius of 218.00 feet, the chord azimuth and distance being: 4. 71° 57' 51" 65.62 feet; 5. 80° 37' 15" 100.97 feet along the North side of Kahilipulu Way; Thence along the North side of Kahilipulu Way, on a curve to the left with a radius of 262.00 feet, the chord azimuth and distance being: 6. 75° 50' 46" 43.62 feet; 7. 71° 04' 15" 4.12 feet; Thence along the East side of Pohaiula Place, on a curve to the right with a radius of 30.00 feet, the chord azimuth distance being. 8. 116° 04' 15" 42.43 feet; 9. 161° 04' 15" 117.34 feet along the East side of Pohaiula Place; 10. 243° 18' 30" 908.00 feet along the South side of Lot 5-A-1; 11. 260° 07' 30" 162.82 feet to the point of beginning and containing an area of 4.604 acres,more or less. MEMORANDUM OF UNDERSTANDING FOR HOKUALA RESORT THIS MEMORANDUM OF UNDERSTANDING FOR HOKUALA RESORT ("MOU") effective as of day of , 20 , by and between the TOWER KAUAI LAGOONS ENTITIES (as defined herein), all of which are Delaware limited liability companies, and TOWER KAUAI LAGOONS 8, LLC, a Delaware limited liability company, in its capacity as Acting Declarant (as defined herein), all of whose mailing address is 3351 Hoolaulea Way, Lihue, Kauai, Hawaii 96766 ("Tower Entities"), and the COUNTY OF KAUAI, by and through the Planning Department of the County of Kauai ("Planning Department"), whose mailing address is 4444 Rice Street, Suite A473, Lihue, Kauai, Hawaii 96766 ("County"). 1. RECITALS. 1.1 Hokuala Resort. The Tower Entities are the current developers of the Hokuala Resort. Tower Kauai Lagoons 8, LLC is the Acting Declarant under the Hokuala CC&Rs. 1.2 Ordinances. The Hokuala Resort properties were transferred into their current CZO Zoning Districts by the passage by the Council of the Ordinances, together with the Ordinance Conditions. 1.3 Master SMA Permit. The development of the Hokuala Resort was further authorized by approval of the Planning Commission of the SMA Permit, together with the SMA Conditions. 1.4 Ordinance Conditions. The Ordinance Conditions included the following conditions related to public access and public recreational improvements: 1.4.1. Condition 7 (as most recently amended and contained in Ord.No. PM-2009-394) required the Applicant under the respective Ordinances to do the following: a. The Applicant was to provide public access over all existing public vehicular and pedestrian public accessways on the Hokuala Resort. b. The Applicant was to provide proof of executed easement documents providing vehicular and non-motorized bicycle access from Kapule Highway to the roadways on the Lihue Airport property leading to property now owned by the County identified herein as the County Lot. lc , {W:/D005/28317/1/W0173155.DOCx} c. The Applicant was to provide a passive beach park serving the Shoreline located along the southern side of the Hokuala Resort, including the Running Water Beach area, including: public parking; pedestrian access; restroom facilities and shower facilities (including public restrooms and a shower facility at the former Fashion Landing commercial area beneath the restaurant facility); recreational (picnic) shelters; picnic areas; and weather shelters and picnic tables along the lateral shoreline access. d. The Applicant was to provide lateral shoreline access along the Shoreline located along the southern side of the Hokuala Resort, including the Running Waters Beach area, as shown on a Roadway and Public Access Plan (August 2006), which was to be updated and made more specific at the time of SMA Permit and Zoning Permit approval, at which time the Public Facilities locations were to be determined. e. The Applicant was required to agree to indemnify, defend, pay for all attorney's fees and costs, and hold harmless the County from claims arising out of public use of the Public Access Easements and Public Facilities. 1.4.2. Condition 21.b. (as most recently amended and contained in Ord.No. PM-2009-394) required the Applicant to provide the Planning Commission with a status report of compliance with the SMA Conditions prior to the issuance of any other land use permits, including an update of the Roadway and Public Access Plan (August 2006) identifying the location of the Public Accessways and Public Facilities. 1.5 SMA Conditions. The SMA Conditions included the following conditions related to public access,public recreational improvements and annual reports: 1.5.1. Condition 9 of the SMA Conditions (as most recently amended and contained in the Third Amendment)required the Applicant under the SMA Master Permit to: a. Provide Public Access over the Public Accessways. b. Provide Public Facilities as shown on the Public Access Plan (May 2009), including: recreational shelters; shower and restroom facilities; 10 public parking stalls at the eastern edge of the Fashion Landing area; 10 public parking stalls at the western end of the project near Kukii Point; and a lateral pedestrian public access from the Fashion Landing area to the Inn on the Cliffs area and on to Kukii Point. 1.5.2. Condition 28 of the SMA Conditions required the Applicant to provide annual reports to the Planning Commission. 1.6 Purpose. The Parties wish to enter into this MOU for the following purposes: {W:/DOCS/28317/1/W0173155.DOCX} -2- a. The Parties wish to clarify the obligations, duties and responsibilities under the Ordinance Conditions and the SMA Conditions of the Tower Entities, as developers of the Hokuala Resort, and Tower Kauai Lagoons,LLC, as Acting Declarant under the Hokuala CC&Rs. b. The Parties wish to update the original Roadway And Public Access Plan (August 2006), as modified by Public Access Plan (May 2009), by adopting the current Public Access Plan(Exhibit"A")and the current Passive Beach Park Plan(Exhibit "B"). c. The Parties wish to confirm that the Public Access Plan (Exhibit "A") accurately shows the existing Public Accessways and Public Easements on the Hokuala Resort as of the date of this MOU. d. The Parties wish to confirm that the Passive Beach Park Plan (Exhibit "B") accurately shows the location of the existing Public Improvements on the Hokuala Resort as of the date of this MOU. e. The Parties wish to agree on a process by which the Public Access Plan (Exhibit "A") and the Passive Beach Park Plan(Exhibit "B") may be reviewed and updated as necessary to comply with the Ordinance Conditions and the SMA Conditions. 2. DEFINITIONS. 2.1 Definitions. The Parties agree that the following terms shall have the following meanings: 2.1.1. "Acting Declarant" means Tower Kauai Lagoons 8, LLC as the successor to the original Declarant named as Acting Declarant under the Hokuala CC&Rs. 2.1.2. "Applicant" shall mean the original Applicants under the Ordinances and SMA Master Permit. The term shall include the Tower Entities, as successors in interest to the Applicant, with regard to the Ordinance Conditions and the SMA Master Permit Conditions applicable to the Tower Lots. 2.1.3. "Bicycle" shall mean a non-motorized bicycle. 2.1.4. "Council" shall mean the Council of the County of Kauai. 2.1.5. "County Lot" shall mean that certain property located in Kalapaki and Hanamaulu, Lihue, Kauai, Hawaii,identified by Kauai Tax Map Key No. (4) 3-5-001:102. 2.1.6. "CZO" shall mean the Comprehensive Zoning Ordinance of the County of Kauai, as codified in Title IV, Chapter 8 of the Kauai County Code, 1987. {W:/DOCS/28317/1/W 0173155.DOCX_} -3- 2.1.7. "Hokuala CC&Rs" means the Declaration Of Covenants, Conditions And Restrictions For Kauai Lagoons recorded in the Bureau as Document No. 2008- 040613 and in the Land Court as Land Court Document No. 3723797, as amended: by a First Amendment To Declaration Of Covenants, Conditions And Restrictions For Kauai Lagoons recorded in the Bureau as Document No. 2009-093734 and in the Land Court as Land Court Document No. 3870079; by annexation recorded in the Bureau as Document No. 2010-038754; by a Second Amendment To Declaration Of Covenants, Conditions And Restrictions For Kauai Lagoons recorded in the Bureau as Document No. A-54780169 and in the Land Court as Land Court Document No. T-9130059; by a Third Amendment To Declaration Of Covenants, Conditions And Restrictions For Kauai Lagoons recorded in the Bureau as Document No. A-72410588 and in the Land Court as Land Court Document No. T-10893265; and by an Assignment Of Declarant Rights Under Declaration Of Covenants,Conditions And Restrictions For Kauai Lagoons recorded in the Bureau as Document No. A-54780206 and in the Land Court as Land Court Document No. T-9130061. 2.1.8. "Hokuala Resort Index" means the index listing the Public Accessways and Public Easements attached hereto as Exhibit"C". 2.1.9. "Hokuala Resort" means all of the lands located within the Hokuala Resort project in Kalapaki, Lihue, Kauai, Hawaii, as shown on Exhibit "D" attached hereto. 2.1.10. "Lateral Shoreline Access" shall mean pedestrian access along the shoreline on the southern side of the Hokuala Resort. 2.1.11. "Lot 5-A" shall mean Lot 5-A of the Hokuala Resort identified by Kauai Tax Map Key No. (4) 3-5-001:168. 2.1.12. "Ordinances" shall mean County Ordinance Nos. PM-146-86, PM-2002-363,PM-2006-383, and PM-2009-394. 2.1.13. "Ordinance Conditions" shall mean the Conditions of Approval of the Ordinances. 2.1.14. "Passive Beach Park" shall mean: the unimproved shoreline areas located on and along the Shoreline on the south side of the Hokuala Resort, including the Running Waters Beach area; the Public Accessways and Public Easements providing access to and through the Passive Beach Park; and the Public Facilities supporting the Passive Beach Park uses. 2.1.15. "Passive Beach Park Plan" shall mean the plan attached hereto and incorporated herein as Exhibit "B". {W./DOCS/28317/1/W0173155 DOCX} -4- 2.1.16. "Planning Commission" shall mean the Planning Commission of the County of Kauai. 2.1.17. "Planning Department" shall mean the Planning Department of the County of Kauai. 2.1.18. "Planning Director" shall mean the Director of the Planning Department. 2.1.19. "Public Accessways" shall mean the system of vehicular roads, non-motorized Bicycle pathways, and pedestrian pathways on the Hokuala Resort serving the guests and residents of the Hokuala Resort which are also available for use by the public. This term shall not include any golfcart paths which are intended for use by golfers as part of an active golf course operation. 2.1.20. "Public Easements" shall mean Public Accessways over which recorded easements exist in favor of the County of Kauai. 2.1.21. "Public Facilities" shall mean: the public recreational pavilion with showers and restrooms on the Hokuala Resort located on the west side of Running Waters Beach ("West Pavilion"); the public recreational pavilion with showers on the Hokuala Resort located on the east side of Running Waters Beach ("East Pavilion"); the two (2) portable toilet facilities located at the Fashion Landing site; the picnic tables located within the Passive Beach Park; and the Public Parking, Public Accessways, and Public Easements used by the public to access the Passive Beach Park and the Lateral Beach Access. All of the Public Facilities are shown on the Passive Beach Park Plan. 2.1.22. "Public Improvements" shall mean the Passive Beach Park, Public Accessways,Public Facilities,Public Parking, and Signage. 2.1.23. "Public Parking" shall mean the designated parking areas for the public located at the southern end of Kalapaki Circle and adjacent to the Fashion Landing area as shown on the Public Access Plan. 2.1.24. "Roadway And Public Access Plan" shall mean the plan attached hereto as Exhibit "A". 2.1.25. "Shoreline" has the same meaning as the term is defined in Hawaii Revised Statutes Section 205A-1. 2.1.26. "Signage" shall mean the directional and informational signs used to identify the Public Accessways, Public Easements, Passive Beach Park, Public Facilities, Public Parking, and Lateral Shoreline Access. {W:/DOCS/28317/1/W0173155.DOCX} -5- 2.1.27. "SMA Conditions" shall mean the Conditions of Approval of the SMA Permit. 2.1.28. "SMA Permit" shall mean Special Management Area Use Permit SMA(U)-2005-8, Project Development Use Permit PDU-2005-26, Use Permit U-2005-25, Variance Permit V-2005-7 and Class IV Zoning Permit Z-IV-2005-30, as amended by a First Amendment to SMA Permit, a Second Amendment to SMA Permit, and a Third Amendment to SMA Permit. 2.1.29. "Status Report" shall mean the annual reports to the Planning Commission required by the Ordinance Conditions and the SMA Conditions. 2.1.30. "Tower Entities" shall mean: Tower Kauai Lagoons, LLC, a Delaware limited liability company, Tower Kauai Lagoons Land, LLC, a Delaware limited liability company; Tower Kauai Lagoons 8, LLC, a Delaware limited liability company (for itself and in its capacity as Acting Declarant); 2014 Kauai Lagoons Golf, LLC, a Delaware limited liability company; Tower Kauai Lagoons Retail, LLC, a Delaware limited liability company; and Tower Kauai Lagoons TS, LLC, a Delaware limited liability company. 3. AGREEMENT AND UNDERSTANDING. 3.1 Compliance. The Parties agree that the Tower Entities shall comply with the Ordinance Conditions and the SMA Conditions as follows: 3.1.1. The Tower Entities shall provide public access on a twenty-four (24) hours a day, seven (7) days a week basis over and to the Public Easements, the Public Facilities, the Passive Beach Park, and the Public Accessways. The Public Accessways shown by the solid orange line on the Public Access Plan may be used for vehicular, Bicycle and pedestrian access purposes. The Public Accessways shown by the dotted orange line on the Public Access Plan may be used for pedestrian and Bicycle access purposes. The Public Easements are shown by the solid green line (for vehicular, pedestrian and Bicycle access) and by the dotted green line (for pedestrian and Bicycle access) on the Public Access Plan. 3.1.2. The Tower Entities shall provide Public Parking including a minimum of ten (10) parking spaces in the Kalapaki Circle Parking area and a minimum of ten (10)parking spaces in the Fashion Landing Parking area as shown on the Public Access Plan. 3.1.3. The Tower Entities shall continue to provide and maintain the following Public Facilities in the locations shown on the Park Plan: a. The West Pavilion; b. The East Pavilion; {W:/DOCS/28317/I/W0173155.DOCX) -6- c. The two (2) Fashion Landing Portable Toilets; d. Four(4) Picnic Tables; and e. Public Accessways for pedestrian purposes which provide access to the Public Facilities, the Shoreline, the Lateral Shoreline Access, the Passive Beach Park, and Running Waters Beach. 3.1.4 Until such time as the Fashion Landing building is repaired and/or a new building is constructed and commercial operations are resumed, the Tower Entities shall be allowed to satisfy the shower and restroom requirements for the Fashion Landing area: by providing two (2) portable toilets in this area; and by maintaining the shower facilities in the East Pavilion. 3.2 Passive Beach Park. With the exception of the Public Facilities, the approximately 2,500 square foot existing picnic area on the west side of.the West Pavilion and Public Accessways serving the Passive Beach Park,the Parties agree that the Passive Beach Park shall be allowed to remain in its natural state. 3.3 Signage. The Tower Entities shall provide Signage in locations as shown on the Public Access Plan and on the Passive Beach Park Plan. 3.4 Public Easement. The Parties agree that public use and access over the Public Easements shall be governed by the provisions of the Public Easement documents. The Public Easements for vehicular, pedestrian and Bicycle access are shown by the solid green line on the Public Access Plan. The Public Easements for pedestrian and Bicycle access are shown by the dotted green line on the Public Access Plan. 3.5 Modifications. 3.5.1. The Tower Entities shall have the right to add to, substitute, relocate,realign, and modify the Public Improvements ("Modifications") as reasonably necessary for the future development of the Hokuala Resort, provided that: a. The Tower Entities shall be solely liable for all costs, expenses and fees necessary for, or arising out of, such Modifications. b. The Tower Entities shall provide the Planning Department with sixty (60) days prior written notice of the proposed Modification together with such documents or materials necessary to describe the proposed Modification. c. The Public Improvements as modified shall provide substantially the same or greater benefits to the public as they did prior to the modification. {W:/DOCS/28317/1/W0173155.DOCX} -7- d. The Planning Director shall review any proposed Modification for consistency with the Ordinances, Ordinance Conditions, SMA Permit, SMA Conditions, the CZO, and this MOU and, within sixty (60) days of receipt of the notice, approve, disapprove or approve the Modification with conditions as may be reasonable. The failure of the Planning Director to act within the sixty (60) day period shall be deemed an approval. Tower shall have the right to appeal any decision of the Planning Director pursuant to the Planning Commission Rules of Practice And Procedure. 3.5.2. Notwithstanding the provisions of Section 3.5.1., the Tower Entities shall have the right to withdraw and remove any road or pathway located on Lot 5-A from the definition of Public Accessways and from the provisions of this MOU ("Removal"), provided that: a. The Removal is reasonably necessary for the future development of Lot 5-A. b. The Tower Entities shall be solely liable for all costs, expenses and fees for or arising out of such Removal. c. The Tower Entities shall provide the Planning Department with sixty (60) days prior written notice of the proposed Removal together with such documents or materials necessary to describe the proposed Removal. d. The road or pathway being removed from public use as a Public Accessway is also being removed for such use from the guests and residents of the Hokuala Resort. e. The Removal is consistent with the Ordinances, Ordinance Conditions, SMA Permit, SMA Conditions, CZO and this MOU. f. Nothing herein shall prevent the Planning Commission or Council from imposing new conditions related to Tower's obligation to provide new Public Accessways on Lot 5-A as a condition of approval for any new ordinance or permit required for the future development of Lot 5-A. 3.6 Annual Report. The Tower Entities agree to submit to the Planning Commission as part of its required annual Status Report the following information and documents: a. An updated Public Access Plan. b. An updated Passive Beach Park Plan. c. An updated Access Index. {W:/DOCS/28317/1/W0173155.DOCX} -8- d. A description of any Modifications. e. A description of any Removals. f. A description of the condition of all Public Improvements. g. A description of the condition of the two (2) Fashion Landing Portable Toilets and any plans for the renewal of the Fashion Landing commercial operation. 4. GENERAL PROVISIONS. 4.1 Counterpart. This MOU may be executed in more than one counterpart, each of which shall be considered to be an original, but all of which shall constitute a single counterpart. 4.2 Modification of MOU. This MOU represents the entire agreement between the Parties hereto and may not be modified or terminated, in whole or in part, except by another agreement in writing, duly executed by all of the Parties. This MOU is intended to revise and amend any conflicting provisions contained in the Original MOU. 4.3 Controlling Law. The performance and interpretation of this MOU shall be controlled by the laws of the State of Hawaii. 4.4 Rights and Obligations. The rights and obligations set forth herein shall be binding upon, and shall inure to the benefit of, the Parties and their respective heirs, estates, personal representatives, successors, successors in trust and assigns. 4.5 Effective Date. This MOU shall not become effective and binding unless and until signed by all of the Parties hereto. The effective date of this MOU shall be as of the date signed by the last party to sign. 4.6 Definitions. The term "Acting Declarant", "Tower Entities", "Council", "County", "Planning Commission", "Planning Department", "Party" and "Parties" when used in this MOU, or any pronouns used in their place, mean and include males or females, and one or more (or a combination of) real people, companies, corporations or other entities, and each of their respective heirs, devisees, personal representatives, successors, successors in trust and assigns, according to the context. 4.7 Facsimile/Email. The Parties agree that facsimile and electronic mail (email) signatures of this MOU and any other documents related to this MOU shall be binding and effective for all purposes and treated in the same manner as physical signatures. {W:/DOCS/28317/1/W0173155.DOCX} -9- IN WITNESS WHEREOF,the undersigned have executed this MOU the day and year first above written. TOWER ENTITIES: TOWER KAUAI LAGOONS, LLC, a Delaware limited liability company By: Tower Kauai Lagoons, LLC, a Delaware limited liability company Its: Sole Member By Name: Derek Smith Title: Executive Committee Member By Name: Taejo Kim Title: Executive Committee Member TOWER KAUAI LAGOONS LAND, LLC, a Delaware limited liability company By: Tower Kauai Lagoons, LLC, a Delaware limited liability company Its: Sole Member By Name: Derek Smith Title: Executive Committee Member By Name: Taejo Kim Title: Executive Committee Member {W.TDOCS/28317/1/W0173155.DOCX} -1 Q_ TOWER KAUAI LAGOONS 8,LLC, a Delaware limited liability company By: Tower Kauai Lagoons, LLC, a Delaware limited liability company Its: Sole Member By Name: Derek Smith Title: Executive Committee Member By Name: Taejo Kim Title: Executive Committee Member 2014 KAUAI LAGOONS GOLF,LLC, a Delaware limited liability company By: Tower Kauai Lagoons, LLC, a Delaware limited liability company Its: Sole Member By Name: Derek Smith Title: Executive Committee Member By Name: Taejo Kim Title: Executive Committee Member TOWER KAUAI LAGOONS RETAIL,LLC, a Delaware limited liability company By: Tower Kauai Lagoons, LLC, a Delaware limited liability company Its: Sole Member By Name: Derek Smith Title: Executive Committee Member By Name: Taejo Kim Title: Executive Committee Member {W./DOCS/28317/1/W0173155.DOCX} -11- TOWER KAUAI LAGOONS TS LLC, a Delaware limited liability company By: Tower Kauai Lagoons, LLC, a Delaware limited liability company Its: Sole Member By Name: Derek Smith Title: Executive Committee Member By Name: Taejo Kim Title: Executive Committee Member COUNTY: PLANNING DEPARTMENT COUNTY OF KAUAI By Its Planning Director APPROVED AS TO FORM AND LEGALITY: County Attorney {W:/DOCS/28317/1/W0173155.DOCX} -12- EXHIBIT " A " • , -VIII * . .'4110;. ,/ . .:-. • . --4 . . _ _ r , ..,, ,,, d fi4. . .. . .r- IC_ _ . . .., .y i ,� t ‘ �� ';';'.,''';:,'r . .. . „..., ° '� H HliilIl . .,,, .,,, , . . t ,, 1- • . . . th \ ., 44 A ✓ .a r . kip"410, , )1111110t. IT .lt. 4 ) , "N, •/,:,,„:' ''' ' L. t -.:.••••• ..!. Am......4---/ .- • 1`•416.. . ‘1,11� . &4p1 41\ ... 4144; . - d „.-.. 1.1111. 4 • r do,,, ,,i -_,,,,.,...,... -' - ...1.> „en 7' ti,, 4.0 '4 * ' fig• ....IV • - • �..� KiNliti , -7-.. s*•••• • ' . 1, al ... P . ` ' 1 ' IIVWo.i4! !1 :76Z1 y •� r, LEGEND `� • ix ..� s rr . MAL 111.0.112111 ll'IMIC PUBLIC ACCESS PLAN `. :�' '' �"� '6 n. . HO<uALA RESORT °r WIL50N GKGMOTO CORPORATION ..a..•a.MN •ti„ , m„ November, 2021 ¼qj .,,I- J , ' o EXHIBIT A EXHIBIT " B " ,, an , 1,r, ,,,,,-,,)._) \im, • lic__ --- - -,irty,:. , . ' . si . , —,—,:- . -,„‘>,... . -.Y..-.. . I it . *.ill, tilit‘ i$J •x; .. r f • .r II ! ..r I it f r p ,r. ,t, Oltkr i i 40. j s r� I '• .11M1 y / PUBLIC iOW01UMC RK MYNJON\MOWER RACIlTT '! (PICNIC PAVILION SHOWER A•. •\RESTROOM FACILITY 7 ., A e • Q iiia --\,,>:::.414e,.40p, �F. /Ilt i. - .. PAASSIVE ARFAEACH * 'I. ; CCEERJTTIIF m;� AS LEGEND "•� • - T M K CERTIFIED SHORELINE(2006) •.... PUBLIC ACCESSWAY EASEMENT(PED I B.EI •...• LATERAL SHORELBE ACCESS - PUBLIC ACCESSWAY IVEHIOILARI PED'BIM •...• PUBLIC ACCESSWAY(PEE I NCH) o EX H I B I T B em, PASSIVE BEACH PARK AREA « PUBLIC ACCESSWAY SIGNAGE FIGURE AREA PUBLIC HaGU ACCESS RAN SHORELINE AREA EXHIBIT " C " HOKUALA RESORT INDEX A. PUBLIC ACCESSWAYS. TMK LOT ACCESSWAY LOT OWNER (4) 3-5-001:001 R HOOLAULEA WAY KAUAI GOLF LLC (4)3-5-001:027 2-A-1 PAHOLA DRIVE PATHS TOWER KAUAI LAGOONS LAND LLC KALAPAKI CIRCLE EASEMENT 15 PATH U (4)3-5-001:168 5-A PATH 2014 KAUAI LAGOONS GOLF LLC E"' ea (4) 3-5-001:174 10-B PATH KALANIPU'U CONDOMINIUM (0001-0081) (HOKUALA CC&Rs LOT) W (4) 3-5-004:110 ROAD LOT B KAHILIPULI WAY TOWER KAUAI LAGOONS LAND LLC (4) 3-5-004:220 9-E HOOLAULEA WAY TOWER KAUAI LAGOONS TS LLC HOLOKAWELU WAY (4) 3-5-004:209 ROAD LOT D PATH TOWER KAUAI LAGOONS LAND LLC (4) 3-5-004:711 ROAD LOT E ALA'OLI WAY TOWER KAUAI LAGOONS LAND LLC {W:/DOCS/28317/1/W0172882.DOCX} B. PUBLIC EASEMENTS. TMK LOT EASEMENT ACCESSWAY LOT OWNER (4) 3-5-001:006 3 20 NININI POINT STREET TOWER KAUAI LAGOONS LAND LLC (4) 3-5-001:027 2-A-1 7/8/9 NININI POINT STREET TOWER KAUAI LAGOONS LAND LLC 11/21/R-2 PATH SA-1-B SA-2 SA-3 (4) 3-5004:110 ROAD LOT B R-2 KAHILIPULU WAY TOWER KAUAI LAGOONS LAND LLC (4) 3-5-001:168 5-A 21/22 NININI POINT STREET 2014 KAUAI LAGOONS GOLF LLC (4) 3-5-001:173 10-A R-3 KAHILIPULU WAY TOWER KAUAI LAGOONS RETAIL LLC 16/SA-4 PATH (4) 3-5-001:216 9-A SA-1-B PATH TK RESORT CONDOMINIUM (0001-0050) -2- {W:/DOCS/28317/1/W0172882.DOCX} EXHIBIT " D " ISI TTM I IlL."Mf LOT 3 F.P.1903 .« / \ 1 l r. , 1 / � ‘-,-/----,- � - �,,�J j/f{- / A -iir 0.1 F1 AG L ANI OMNI. 14 06,7 1 Vie:LOT 1 " KAUAI LAGOONS .' S t R E ,. • 2ND AMENDMENT 4, E► U a NORTH . SCALE: r.S00 1/4.11. rim.rf.m.1 OUTLINE OF KAUAI LAGOONS RESORT o :e0'100' NO E,b' SCALE:1"=800'