TO ACQUIRE BY EMINENT DOMAIN AN EASEMENT OVER, UNDER, THROUGH AND ACROSS A PORTION OF THE REAL PROPERTY IDENTIFIED AS TAX MAP (1) 1-5-022-006 , LOCATED AT 1366 DILLINGHAM BOULEVARD, HONOLULU, HAWAII 96817, AND OWNED BY ROBERT K.W.H. NOBRIGA, ELLIOT K. MILLS, CRYSTAL KAUILANI ROSE, JENNIFER NOELANI GOODYEAR-KA’OPUA AND MICHELLE M. KAUHANE, TRUSTEES UNDER THE WILL AND OF THE ESTATE OF BERNICE PAUAHI BISHOP, DECEASED.

WHEREAS, Section 17-103.2(b) of the Charter empowers HART "to acquire by eminent domain … all real property or any interest therein necessary for the development of the fixed guideway system;" and

WHEREAS, prior to such acquisition the Charter directs HART to submit a list of real property to be acquired by eminent domain to the City Council; and

WHEREAS, the City Council may approve the acquisition by eminent domain or may object by adoption of a resolution within 45 days of the notification to acquire the real property; and

WHEREAS, the acquisition by eminent domain of an easement over, under, through and across a portion of the real property identified as Tax Map Key (TMK) (1) 1-5-022-006, which easement is more particularly described in the attached legal description and parcel map marked as Exhibit A (“Easement”); and

WHEREAS, the Easement is necessary in connection with the development of the Honolulu Rail Transit Project fixed guideway system, a valid public use and purpose; and

WHEREAS the Easement rights shall include without limitation, development (and redevelopment), construction (and reconstruction), improvement, upgrade, building, installation, location, placement, removal, enlargement, structural modification, safety updates, reduction, inspection, protection, operation, use (including public use), preservation, protection, maintenance and repair of the fixed guideway system; and

WHEREAS, the purpose, type, description and restrictions of the Easement HART is acquiring by eminent domain is described in Exhibit B; and

NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of HART as follows:

a. The HART Board has provided the necessary preauthorizations and notifications to the City Council, and the City Council has approved and/or taken no action regarding the acquisition of the Easement by eminent domain;

b. HART has provided the owners with the requisite notices and has given the owners the opportunity to accompany HART’s appraiser during the appraiser’s site inspection;

c. HART has obtained an appraisal of the Easement, made by a qualified appraiser licensed in the State of Hawaii;

d. HART’s appraisal was approved by a qualified review appraiser, in accordance with federal requirements, and HART received the necessary appraisal concurrence from the Federal Transit Administration, if applicable;

e. HART has established amounts that it believes are just compensation for the Easement, based on HART’s approved appraisal;

f. HART has made a written offer to the owners in the full amount of the just compensation established by HART, which written offer included a written statement of the basis for the offer of just compensation, in accordance with 49 C.F.R. 24.102(e); and

g. HART has made reasonable efforts to contact the owners and/or the owner’s representatives to discuss its offer to purchase the Easement and has given the owners a reasonable opportunity to consider HART’s offer and to respond.

2. That the acquisition by eminent domain of the Easement is hereby authorized and the Corporation Counsel of the City and County of Honolulu and/or HART’s selected outside legal counsel is empowered to institute eminent domain proceedings as provided by law for the acquisition thereof; and

3. That the acquisition of the Easement by eminent domain is determined and declared to be for a valid public use and purpose as aforesaid; and

4. That the acquisition of the Easement by eminent domain is determined and declared to be necessary for the aforesaid public use and purpose; and

5. That in the process of said proceedings in eminent domain, the Corporation Counsel and/or HART’s selected outside legal counsel is authorized and empowered to negotiate terms of settlement, subject to the approval of HART, the HART Board and/or the Court before which such proceedings are commenced; and

6. That the Board Executive Officer be directed to transmit copies of this resolution to HART and the Department of Corporation Counsel.

_____________________________
Board Chair

Easement 500A For Guideway Purposes
In Favor of HART
Affecting Parcel 6
Being a Portion of Royal Patent 7834, Land Commission Award 7714-B,
Apana 7 to Moses Kekuaiwa

SITUATE AT MOKAUEA, KALIHI, HONOLULU, ISLAND OF OAHU, HAWAII

132° 19′ 33" 0.24 feet;

2. 132° 20′ 44.37 feet along the northeast side of Dillingham Boulevard;

3. Thence along the northeast side of Dillingham Boulevard, on a curve to the right with a radius of 50.00 feet, the chord azimuth and distance being:

150° 50′ 09.5" 31.73 feet;

4. 222° 30′ 1.42 feet;

5. 312° 30′ 28.00 feet;

6. 42° 30′ 3.80 feet;

7. Thence on a curve to the left with a radius of 3900.00 feet, the chord azimuth and distance being:

305° 30′ 49" 45.87 feet;

8. 37° 15′ 13.11 feet along Parcel 4, being a Portion of R.P. 7834, L.C. Aw. 7714-B, Ap. 7 to Moses Kekuaiwa to the point of beginning and containing an area of 700 Square Feet.

i. Area located within ten (10) feet horizontally on each side of the Project Improvements and fifteen (15) feet vertically above the surface and within which an exclusive safety buffer of ten (10) feet in every direction around columns and footings may be established, within which construction (including reconstruction), development (including redevelopment), inspection, preservation, protection, maintenance and repair of the Project, including, without limitation, the Project Improvements, may be maintained and performed.

ii. HART shall have the right, at HART’s sole cost, to establish an exclusive safety buffer of up to ten (10) feet around and extending outward in every direction from each of the columns and footings. HART may, without limitation, temporarily or permanently: (1) cordon off a safety buffer from the public and pedestrian traffic by fencing or other barrier systems and (2) place within the safety buffer barriers or other protective measures to protect the columns and footings. HART will take into consideration the impact to the surrounding area and minimize the size in establishing the safety buffer. Within the cordoned- off area, HART has the right to store temporarily any non-hazardous or combustible equipment or supplies related to active and ongoing CO&M (as defined below). HART shall repair, maintain, and secure any such fencing or barrier systems, and any equipment or supplies stored therein.

ii. The right to use the Easement Area for CO&M material, equipment, and vehicles, as well as similar items, matters and things, together with and for pedestrian, vehicle and equipment use, access, ingress and egress purposes, including, without limitation, the CO&M of any and all Project Improvements, fixtures, equipment, and other facilities described in and/or contemplated by this instrument and/or the Project (collectively, the “Facilities”), together with any and all appurtenances pertaining thereto; and

iii. The right to clear the Easement Area of any and/or all obstructions, to cut, trim and/or remove trees, shrubbery and/or other vegetation located in, on, about, along, over, under, or otherwise affecting the Easement Area, or that may interfere or threaten to interfere with or endanger or threaten to endanger the Project, including, without limitation, the reliability, efficiency, and/or the CO&M of the Project, the Facilities, and/or the appurtenances thereto, through any reasonable means.

b. Grantor shall not, commit or permit a use that might cause a hazardous condition to exist with respect to, or that might interfere with, endanger, or otherwise adversely affect, the Project. Grantor shall not construct or allow to be constructed any structure, building, or other improvement, and shall not plant any trees, shrubbery or other vegetation or impound any water or place any temporary or permanent erection of any mast-type equipment or appurtenances within or below the Easement Area, so as to interfere with the safe, efficient, and/or convenient operation of the Project or which conflict with or which are in violation of applicable laws (“Obstructions”). The foregoing prohibitions shall be a covenant running with Grantor’s land. HART shall have the right to remove, or cause to be removed, any Obstruction(s) which interferes with or endangers or threatens to interfere with or endanger the Project.

c. The Easement is intended to provide for an aerial easement for the Project, with and including rights for subsurface footing, foundation, foundation system, other support structures and appurtenances, precluding the use of the surface land area and the area above the surface land area.

b. Hazardous Materials. Storage of hazardous and/or combustible materials is prohibited within the Easement Area.

c. In the event of landscaping uses on the non-exclusive areas, Grantor shall be responsible for maintaining such landscaping in a clean, neat, and safe condition.