Contract from Maui County re the HOA Retention Basin Fence

LICENSE AGREEMENT [ draft ]

This License Agreement (“License”) is made this 30th day of September, 2025, by and between the COUNTY OF MAUI, a political subdivision of the State of Hawaii, whose address is 200 South High Street, Wailuku, Maui, Hawai.i 96793 (“Licensor”), and KUAU BAYVIEW AT PAIA HOMEOWNERS’ ASSOCIATION, a Domestic Nonprofit Corporation, whose address is 37 Kaiea Place, Paia, Maui, Hawaii 96779 ("Licensee") (collectively, the "Parties").

RECITALS

WHEREAS, there is a fence line bordering Licensee’s land near the property commonly known as Paia Community Center;

WHEREAS, due to safety concerns related to a gulch within Licensee’s property near Paia Community Center, Licensor has agreed to allow Licensee to install a new fence that extends one (1) foot onto Licensor’s property; and

NOW THEREFORE, Licensor hereby grants, and Licensee hereby accepts, a temporary revocable License to install and maintain a fence that extends one (1) foot onto Licensor’s property, subject to the terms and provisions set forth below.

TERMS AND PROVISIONS

1. Licensed Area. Licensor agrees to make available to Licensee that certain parcel of land near Pa.ia Community Center, identified as Tax Map Key (2) 2-5-013:025, and illustrated in Exhibit “A” attached hereto and incorporated herein (“License Area”).
2. Term. The term of this License shall begin upon execution and shall continue for five (5) years. This License is temporary and may be revoked at any time at Licensor’s discretion. The Parties may also terminate this License at any time with thirty days’ written notice to the other party.
3. License Fee. There shall be no license fee payable to Licensor by Licensee for use of the License Area.
4. Licensee Responsibilities:
   1. A. Licensee, at no cost or expense to Licensor, shall be responsible for obtaining any and all governmental permits, licenses, certifications, and approvals which may be necessary for installation, repair and replacement of the new fence, prior to commencing such work.
   2. B. Licensee agrees to be responsible for all costs associated with the installation, repair and replacement of the new fence.
   3. C. Licensee shall be responsible for the cleanup following any work done on the fence and shall have at least one of its members present at all times in the License Area while the new fence is being installed, repaired or replaced.
5. Insurance. At all times during the term of this License, Licensee shall ensure their designated agent, consultants, contractors, and/or persons acting for or on its behalf, carry and maintain at Licensee’s expense:
   1. A. Commercial general liability insurance, including contingent liability and contractual liability, covering all activities conducted on or located within the Licensed Area. The insurance policies shall be issued by a company or companies authorized to do business in Hawai.i and be approved by Licensor, with combined single limits of ONE MILLION DOLLARS ($1,000,000) per occurrence and TWO MILLION DOLLARS ($2,000,000) in the aggregate. Licensee shall provide Licensor not less than thirty (30) days’ notice prior to any cancellation or material change or reduction in coverage. No such material change or reduction may be made without approval from the Licensor. Licensor and its respective subsidiaries, officers, directors and employees, shall be listed as additional insured. Prior to the installation of the fence, Licensee shall provide the Licensor with a certificate of insurance evidencing the required coverages, and shall ensure that the required coverage shall remain in effect for the term of this License. Licensor reserves the right to request and receive a certified copy of the policies. Licensee shall also carry workers’ compensation insurance for Licensee’s employees in the amounts required by applicable law. Failure to maintain the necessary insurance in accordance with the provisions set forth herein shall constitute a material breach of this License and Licensor shall thereafter have the options of pursing remedies for such breach and/or immediate termination of this License.

      All of the foregoing liability insurance shall be issued on an occurrence basis and include the condition that it is primary and that any such insurance maintained by Licensor is excess and non-contributory. Licensee waives all rights of action and subrogation against Licensor to the extent of any insurance recoveries that may be obtained by Licensee (and/or any consultants, contractors, subcontractors, employees, and agents as applicable). Proof of insurance shall be provided to the Director of the Department of Parks and Recreation (“Director”), prior to entry under this License.

6. Indemnity. Licensee agrees to hold Licensor, its officers or agents, harmless from all claims, suits or actions of every kind and nature due to any injury, damages or death, which arise out of the actions of Licensee in connection with this grant of License except for such claims, suits or actions arising out of the negligent acts or omissions of Licensor, subject to Chapter 3.16, Maui County Code.
7. Rules and Regulations. Licensee agrees at all times during the terms of this License to abide by such reasonable rules and regulations as in Licensor’s judgment may from time to time be necessary, and Licensee shall be bound by the terms of such rules and regulations after such notification of said rule(s) by Licensor to Licensee.
8. Reservations by Licensor: Licensor reserves the right to relocate all or a portion of the Licensed Area to such area within the Licensed Area as may be reasonably determined by Licensor to be necessary; provided, Licensee shall have the option to terminate this License in any such event of relocation.
9. Non-assignability. This License is personal to Licensee, and Licensee shall not assign, transfer, convey or encumber the License and other rights herein granted or any portion thereof or interest herein except to the extent authorized by the Director.
10. Notice. Any notice which is required to be given or may be given hereunder shall be effective only if in writing, signed by the party giving such notice and delivered or sent by mail to the address stated in the recitals herein.
11. Governing Law. This License shall in all respects be interpreted, enforced and governed by and under the laws of the State of Hawaii.
12. Entire License; Amendment. This License supersedes all previous oral and written agreements represented by or on behalf of the Parties and constitutes the entire agreement with respect to the subject matter hereof. This License may not be amended except by written agreement executed by both Parties.
13. Entire Agreement. This Agreement may be executed in one or more counterparts, each of which shall be an original and all of which taken together shall constitute but one and the same instrument.

IN WITNESS WHEREOF, the Parties have executed these presents the day and year first above written.

LICENSOR:

COUNTY OF MAUI:

By Mayor RICHARD T. BISSEN, JR.

APPROVAL RECOMMENDED:

By (signature) PATRICK S. MCCALL Director of Parks and Recreation

APPROVED AS TO FORM AND LEGALITY:

By (signature) KRISTIE M. WRIGGLESWORTH Deputy Corporation Counsel

LF2025-1055 -- 2025-09-24 Kuau Bayview HOA Fence License.docx

LICENSEE:

KUAU BAYVIEW AT PAIA HOMEOWNERS' ASSOCIATION

By (Signature) DARLENE BROTHERS, Its President

EXHIBIT "A"

The “De Minimis” Rule: Some small encroachments, under the 1997 Hawaii law, are considered “de minimis,” meaning they extend no more than six inches over a boundary. While still technically encroachments, they are deemed too minor to require correction.

On 10/02/25 14:54:31 -1000 Darlene Brothers wrote

Dear Hoku: Thank you for sending this draft license agreement. Without getting into any questions I may have regarding the agreement itself, due to the seven (7) month delay in allowing Miranda Fencing to complete the fence, I am worried they may be so fed up they may be unwilling to ever work with us again. Therefore, before I call them, I would like to know if Parks is going to grant the ROE for both sections of the fence as specified in the ROE application. I would like to call Ken Miranda and tell him he can proceed not only with the 163' of fence posts that have already been installed but also with the 82' feet of fence posts that still need to be installed extending mauka to the corner of Lot 26. I feel embarrassed that Ken's time has been wasted and his scheduling disrupted for almost a year now, so I'd like him to have to come down from Kula with his equipment only one more time so I can pay him on the spot. I wrote him a check in April but he did not take it, ie. he has not been paid at all yet for those posts! Out of respect for Miranda Fencing's time and expenses, please let me present him with one simple decision which would require only ONE more trip down the volcano. I have already provided Parks with the LUD, the SMX, the COI, and the ROE application. Nohe U'U-Hodgins last April said she would be happy to move the vehicles blocking the gate into the mauka half of the park to allow entry of the Miranda truck. I don't even want to contact Ken Miranda until I know the ROE for both fence sections has been approved. Please let me know asap as I'd like to call Ken tomorrow (Friday) so we can resolve this child safety issue as soon as humanly possible.

Mahalo for your understanding, D Brothers

Aloha: As Hoku did not answer my simple question re the ROE approval, I am forwarding this email to the rest of the people involved. I can't imagine any legitimate reason for withholding the ROE for Miranda Fencing to enter the PCC public parking lot or the public park for a few hours to repair the HOA fence that would protect children from falling down a very steep hill into the Retention Basin. I have always considered this an urgent problem of child safety. Can you not understand my desire to show respect for Ken Miranda and his workers? Please, I implore you to confirm approval of the ROE for both sections of the HOA fence, ie. all 245 feet. I'll work on my questions re the contract this weekend. Mahalo, db

On 10/03/25 3:24 PM, Hoku Hobbs wrote:

Aloha e Ms. Bothers: Thank you for your email and for raising your concerns regarding the Right of Entry (ROE) approval for Miranda Fencing. I understand the urgency you feel regarding the repair of the HOA fence. Your feedback on the draft agreement is currently in line for review. Someone else or I in the department will address your request regarding the confirmation of the ROE approval for both sections of the fence (the full 245 feet) once the review is completed.

To ensure that everyone involved is kept aware could you please clarify who the "rest of the people involved" are that you referenced in your initial email? Once I have the list (email addresses), I can ensure the proper individuals receive this correspondence. I appreciate your patience.

Mahalo, Hoku Hobbs
Grant Coordinator | Department of Parks and Recreation

On 10/03/25 4:15 PM, Kuau Bayview HOA wrote:

Dear Hoku: Thank you for responding. Please understand that Tom & I are shocked to learn that the posts are over the line and we greatly appreciate the generous offer from County to not make us move the posts. What I don't understand is why approval of the ROE has anything to do with the contract. So unless we agree to the contract, you won't let us repair our fence?! The "rest of the people involved" are the parks people, the HOA Board, the people on the contract, and Nohe. Do you realize we are talking about a chain link fence repair??!!! Good grief. Have a great weekend! db :)

On 10/09/25 7:37 AM, Darlene Brothers for Kuau Bayview HOA wrote:

Dear Hoku et al:

Kuau Bayview at Paia HOA (hereinafter KB) is a representative government just as is Maui County; therefore, in entering into any agreement, the KB HOA Board must take into account the best interests of not only the current owners but of all future owners. KB willingly allowed Parks to use a strip of HOA land outside our old fence that was 245 feet long and varied in width between 2 and 4 feet (approximately 735 sq ft). We did not require insurance or stringent terms. We did not object when Parks installed their fence 14" into HOA property. We requested the post be relocated only when we needed to replace our fence because the Parks fence transected the new fence line. Applying the De Minimus Rule (1997 Hawaii Law), by comparison the County is offering to formally license the HOA approximately 18 sq ft of unusable land outside Parks' post-and-beam fence. The work order was to install the new fence "on HOA property as close to the property line as possible" so as to eliminate the need for the HOA to maintain property outside our fence, and to avoid misuse of the HOA land as had happened over the years since 1995 (eg. bulldozing fill onto it, dumping cement and other building materials, dumping garbage, etc).

At first we were elated to learn that the County had decided to let the fence be completed without moving any posts. But when I went through the contract line by line, it is so heavily weighted in favor of the County and so complicatedly burdensome and costly to KB, that we cannot possibly accept it. Please don't misunderstand. We greatly appreciate the effort and good will that went into this agreement, and the time of all the people who had to read and approve it. That this effort was so easily avoidable makes me very sad. I begged Shane Dudoit last April to please bring the survey report and walk the line with me so we could determine what was needed to move forward. It would have taken 15 minutes. No response. If I had seen the survey showing the posts were over the line last April, I would have offered to donate the fence to the County. But we received no communication from the County between May 1st and Sept 30th, and now this proposed License Agreement. In the interest of brevity, suffice it to say, "Thanks, but no thanks." The agreement is not salvageable. There is no need to discuss anything beyond the words "temporary revocable License" in the first few lines.

Below are the only possible resolutions...

1. The HOA pays to have the 163' of fence completed by Miranda Fencing. Ownership of the fence is then donated to Parks with our sincere apologies for inadvertently going over the line. As the fence is situated on Park property anyway, this is a logical solution that would make sense to people 100 years from now when the paperwork has long since been archived. Parks will own and maintain the fence henceforth. The County can then install (at their own expense) and maintain henceforth the remaining 82 feet of fencing to Lot 26 on the Park side of the line. The HOA will have no further interest in that fence. No License Agreement or 3rd party insurance will be necessary as the entire 245 feet will be owned by the County on County land.
2. The HOA pays to have the 163' of fence completed by Miranda Fencing. Ownership of the fence is then donated to Parks with our sincere apologies for inadvertently going over the line. Parks will own and maintain the 163' fence henceforth. The HOA then pays Miranda Fencing to install 8 more posts along the remaining 82 feet to the corner of Lot 26 on the HOA side of the property line. The chain link is installed completing 82 feet of fencing. The HOA retains ownership of the 82' fence and continues to maintain it henceforth. No License Agreement or 3rd party insurance will be necessary as the entire 82 feet will be owned by the HOA on HOA land. This option will make less sense to KB owners and Park workers 100 years from now when the paperwork has long since been archived.
3. The 16 existing fence posts are moved by Miranda Fencing to the HOA side of the property line and 8 more posts are installed along the remaining 82 feet to the corner of Lot 26. The chain link is installed completing 245 feet of fencing. The HOA pays for and maintains ownership of the 245' fence and continues to maintain it. No License Agreement or 3rd party insurance will be necessary as the entire 245 feet will be owned by the HOA on HOA land.
4. As I have already provided the County with the LUD, the SMX, the COI, and the ROE application, there is no reason to withhold approval of the ROE for both sections of the fence. Time is of the essence due to the extreme child safety hazard. If there is any more delay, please close the PCC playground and Lot 25 area until the fence can be completed.

Sincerely, D Brothers
Kuau Bayview at Paia HOA President & Manager