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HomeMy WebLinkAboutCOM 0620.089 2022-2024REBECCA VILLEGAS Council Member District 7, Central Kona Phone: (808) 323-4267 Fax: (808) 329-4786 Email: Rebecca. villegas(a) _,hawaiicoun1y.gov HAWAPI COUNTY COUNCIL Count)) of Haivai'i West Hawai'i Civic Center, Bldg. A 74-5044 Ane Keohokalole Hwy. Kailua-Kona, Hawai'i 96740 DATE: December 20, 2023 TO: Heather L. Kimball, Council Chair and Members of the Hawaii County Council C S Tt� FROM: Rebecca Villegas, Council Member SUBJECT: Proposed Amendments to Resolution No. 372-23; a Resolution Authorizing: (1) the Hiring of Schlack Ito, a Limited Liability Law Company, as Special Counsel to Represent the County of Hawaii in Hui Malama Ilonokohau v. County of Ilawai'i, Civil No. 1:23-CV-00393; and (2) the Payment of Funds of a Latter Fiscal Year and or More than One Fiscal Year for a Multi -Year Agreement with Special Counsel for the County's Legal Defense in Hui Malama Honokohau i). County of'TIa1A)ai'i, Civil No. 1:23-CV-00393. Please see the below proposed amendments to Resolution No. 3 72-23. The proposed amendments are illustrated below in Ramseyer format as applied to the current contents of Resolution 372-23; material to be deleted is bracketed and stricken, and material to be added is underscored. A copy of the draft of this resolution, that would result if the proposed amendments are adopted, is attached with the amendments incorporated therein. 1. Resolution No 372-23 is amended by amending the 14 th WHEREAS clause to read as follows: "WHEREAS, [a mtilfi year agfeeffient will allow the County to employ Speeial Counsel who ean pfevide sefviees on a eontintfing and consistent basis faf the Lawsuit's dtffatien;] on November 20, 2023, United States District Court for the District of Hawaii ("the Court"), the County, and Hui Maldma Honok6hau avreed to split the Lawsuit into two Dhases. the liability hase and the remedies phase; and" 2. The 15"' WHEREAS clause is amended to read as follows: "WHEREAS, pursuant to Charter § 6-5.5, Corporation Counsel wishes to enter into a multi -year agreement with Schlack Ito to provide the County's legal defense in the Lawsuit Boor 20M C Comm. NO. L"qV m Serving the Interests of the People of Our Island Ref. To: Hawaii County Is an Equal Opportunity Provider And Employer Ref. gate the Lawsuits [duration;] and the Court entered a Rule 16 Scheduling Order that set dates for the liability Dhase and Settlement Conferences onlv: and" 3. The 16t" WHEREAS clause is amended to read as follows: "WHEREAS, the Schlack Ito was duly selected in compliance with the procurement of professional services under Haw. Rev. Stat. § 103D-304[ and the Court set the start date for a non -jury trial for the liability phase only on November 5, 2023; and" 4. The 17t" WHEREAS clause is amended to read as follows: "WHEREAS, the agreement is anticipated to cover the Lawsuit's duration, commencing on or about December 11, 2023[; now there ] and the Court will not schedule dates for the remedies phase of the Lawsuit until it is necessary because: 1) there is not a settlement agreement between the parties, or 2) the Court ruling at the conclusion of the liability phase non - jury trial compels the remedies phase; and" 5. An 18t" WHEREAS clause is added to read as follows: "WHEREAS, a multi -year agreement will allow the County to employ Special Counsel who can provide services on a continuing and consistent basis for the Lawsuit's liability phase and any settlement negotiations-, and" 6. A 19"' WHEREAS clause is added to read as follows: "WHEREAS, pursuant to Charter § 6-5.5, Corporation Counsel wishes to enter into a multi -year agreement with Schlack Ito to provide the County's legal defense in the Lawsuit for the Lawsuit's liability phase and any settlement negotiations; and" 7. A 20th WHEREAS clause is added to read as follows: "WHEREAS, the agreement is anticipated to cover the Lawsuit's liability phase and any settlement negotiations, commencing on or about December 11, 2023; now therefore," 8. The Enacting Clause is amended to read as follows: "BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAIJ that: 1. Pursuant to Char -ter § 6-5.5 (Special Counsel), the County Council authorizes the retention of Schlack Ito as Special Counsel to represent the County in, and defend the County against, the Lawsuit; 2. The funds for the Special Counsel shall not exceed $200,000.00. 3. The Mayor is hereby authorized to enter into a multi -year agreement with Schlack Ito for the legal professional services for the duration of the liability phase and any settlement negotiations of the Lawsuit as described above. 4. That sufficient funds be budgeted in future fiscal years to cover the anticipated obligations of the County for the Lawsuit's liability phase and any settlement negotiations under the terms of the agreement." RV/ca Att. ATTACHMENT RESOLUTION AUTHORIZING: (1) THE HIRING OF SCHLACK ITO, A LIMITED LIABILITY LAW COMPANY, AS SPECIAL COUNSEL TO REPRESENT THE COUNTY OF HAWAPI IN HUI MALAMA HONOKOHA U V. COUNTY OF HA WA11, CIVIL NO. 1:23-CV-00393; AND (2) THE PAYMENT OF FUNDS OF A LATER FISCAL YEAR AND OF MORE THAN ONE FISCAL YEAR FOR A MULTI -YEAR AGREEMENT WITH SPECIAL COUNSEL FOR THE COUNTY'S LEGAL DEFENSE IN HU[MALjMA H0NOK6H4 U V. COUNTY OFHA WAII, CIVIL NO. 1:23-CV-00393 WHEREAS, Hawaii County Charter ("Charter") § 6-5.5 (Special Counsel) provides the Hawaii County Council may approve by two-thirds vote of its entire membership the employment of Special Counsel, for any special matter presenting a real necessity for such employment; and WHEREAS, Charter § 6-5.5 states any such authorization for the employment of Special Counsel shall specify the compensation to be paid for services; and WHEREAS, the County of Hawaii ("County") is named Defendant in the citizens' Clean Water Act ("CWA") civil action regarding the County's Kealakehe Wastewater Treatment Plant titled Hui Maldma 11onok6hatt v. County of Hawai'i, Civil No. 1:23-cv-003 93, commenced in the United States District Court for the District of Hawaii on September 25, 2023 ("Lawsuit"); WHEREAS, the Office of the Corporation Counsel ("Corporation Counsel") does not have the expertise and personnel resources to provide the level of legal services necessary to represent the County in, and defend the County against, the Lawsuit; and WHEREAS, there is a real necessity for Special Counsel to represent the County in, and defend the County against, the Lawsuit; and WHEREAS, pursuant to Hawaii Procurement Code, Hawaii Revised Statutes ("Haw. Rev. Stat.") §103D-304 (2012), Corporation Counsel caused to be published a Notice to Providers of Legal Professional Services ("Notice"), and received timely responses; and WHEREAS, Schlack Ito, a Limited Liability Law Company ("Schlack Ito") was one of the providers that responded to the Notice; and WHEREAS, pursuant to Haw. Rev. Stat. § 103D-3 04, a selection committee of three people was formed to review and rate all qualified providers ("Selection Committee"); and WHEREAS, the Selection Committee selected Schlack Ito as the provider who could best serve the County based on the selection criteria set forth in Haw. Rev. Stat. § 103D-3 04(e), including Schlack Ito's experience and professional qualifications relevant to the project type; the past performance on projects of similar scope; the capacity to accomplish the work in the required time; and any additional criteria determined in writing by the Selection Committee to be relevant to the Corporation Counsel's needs; and WHEREAS, based upon the estimated value, scope, complexity, and nature of the services rendered, Schlack Ito's rate of compensation is fair and reasonable; and WHEREAS, there is $200,000.00 budgeted for legal services to be rendered by Special Counsel; WHEREAS, pursuant to Charter § 10- 11, any contract, lease or other obligation requiring payment of funds from the appropriations of a later fiscal year or of more than one fiscal year shall be approved by resolution; and WHEREAS, due to the complexity and scope of the issues raised in the Lawsuit, the Lawsuit has the potential to last years; and WHEREAS, on November 20, 2023, United States District Court for the District of Hawaii ("the Court"), the County, and Hui Maldma Honok6hau agreed to split the Lawsuit into two phases, the liability phase, and the remedies phase; and WHEREAS, pursuant to Charter § 6-5.5, Corporation Counsel wishes to enter into a multi -year agreement with Schlack Ito to provide the County's legal defense in the Lawsuit for the Lawsuits and the Court entered a Rule 16 Scheduling Order that set dates for the liability phase and Settlement Conferences only; and WHEREAS, the Schlack Ito was duly selected in compliance with the procurement of professional services under Haw. Rev. Stat. § 103D-304 and the Court set the start date for a non jury trial for the liability phase only on November 5, 2023; and WHEREAS, the agreement is anticipated to cover the Lawsuit's duration, commencing on or about December 11, 2023 and the Court will not schedule dates for the remedies phase of the Lawsuit until it is necessary because: 1) there is not a settlement agreement between the parties, or 2) the Court ruling at the conclusion of the liability phase non jury trial compels the remedies phase; and WHEREAS, a multi -year agreement will allow the County to employ Special Counsel who can provide services on a continuing and consistent basis for the Lawsuit's liability phase and any settlement negotiations; and WHEREAS, pursuant to Charter § 6-5.5, Corporation Counsel wishes to enter into a multi -year agreement with Schlack Ito to provide the County's legal defense in the Lawsuit for the Lawsuit's liability phase and any settlement negotiations; and 2 WHEREAS, the agreement is anticipated to cover the Lawsuit's liability phase and any settlement negotiations, commencing on or about December 11, 2023; now therefore, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAIJ that: 1. Pursuant to Charter § 6-5.5 (Special Counsel), the County Council authorizes the retention of Schlack Ito as Special Counsel to represent the County in, and defend the County against, the Lawsuit; 2. The funds for the Special Counsel shall not exceed $200,000.00. 3. The Mayor is hereby authorized to enter into a multi -year agreement with Schlack Ito for the legal professional services for the duration of the liability phase and any settlement negotiations of the Lawsuit as described above. 4. That sufficient funds be budgeted in future fiscal years to cover the anticipated obligations of the County for the Lawsuit's liability phase and any settlement negotiations under the terms of the agreement. BE IT FINALLY RESOLVED that the County Clerk of the County of Hawaii shall transmit copies of this resolution to the Office of the Corporation Counsel.