The URL can be used to link to this page

Home My WebLink AboutCOM 0620.090 2022-2024REBECCA VILLEGAS Council Member District 7, Central Kona Phone: (808) 323-4267 Fax: (808) 329-4786 Email: Rebecca. villegas(��),hawaiicounty.gov HAWAPI COUNTY COUNCIL County of'Hawai'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 FROM: Rebecca Villegas, Council Member SUBJECT: Proposed Amendments to Resolution No. 372-23; 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 Honokohau v. County of Hawai'l, 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 v. County of Hawai'l, Civil No. 1:23-CV-00393 Please see attached proposed Draft 2 of Resolution No. 372-23. 1 will be making a motion to amend by substitution. Serving the Interests of the People ofOur Island Ilawai'i County Is an Equal Opportunity Provider And Employer .&A. 0 COV111.1 Nu ULU q Ref. To: , � 0r, Ref. Date JNSVfOs N,� 0 q COUNTY AP a•• .4 ;I' M� M? . •'� qrf OF.µ�q{ RESOLUTION NO. RESOLUTION AUTHORIZING: (1) THE HIRING OF SCHLACK ITO, A LIMITED LIABILITY LAW COMPANY, AS SPECIAL COUNSEL TO REPRESENT THE COUNTY OF HAWAI`I IN HUI MALAMA HONOKOHAU V. COUNTY OFHA 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 HUI MALAMA HONOKOHAU V. COUNTYOFHAWAI`I, 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 .Malama Honokohau v. County of Hawaii, Civil No. 1:23-cv-00393, 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 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. § 103 D-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-304(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, a multi -year agreement will allow the County to employ Special Counsel who can provide services on a continuing and consistent basis; and WHEREAS, pursuant to Charter § 6-5.5, Corporation Counsel wishes to enter into a multi -year agreement with Schlack Ito to represent the County in the Lawsuit; and WHEREAS, the Schlack Ito was duly selected in compliance with the procurement of professional services under Haw. Rev. Stat. § 103D-304; and WHEREAS, the Council supports a negotiated resolution of the Lawsuit and a County commitment and timeline to upgrade the KWWTP to R- I quality water; and WHEREAS, the Council urges the County to prioritize alternative dispute resolution to resolve the Lawsuit; and WHEREAS, the Council understands a negotiated resolution of a dispute requires the willingness of all parties to participate in that process and to reach agreement on settlement terms and conditions; and M WHEREAS, on November 20, 2023, United States District Court for the District of Hawaii ("the Court"), the County, and Hui Malama I-Ionokohau agreed to split the trial into two phases, the liability phase and the remedies phase; WHEREAS, the Court entered a Rule 16 Scheduling Order that set dates for the liability phase and Settlement Conferences; and WHEREAS, the Court set the start date for a non -jury trial for the liability phase on November 5, 2024; and WHEREAS, the Court will schedule dates for the remedies phase of the Lawsuit if necessary after conclusion of the liability phase; and WHEREAS, the Council may withhold future funding authorization should it determine alternative dispute resolution was not prioritized by the County and/or the administration fails to expeditiously move forward on a KWWTP R- I upgrade; and WHEREAS, the agreement is anticipated to cover the Lawsuit 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 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 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 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. Dated at Hawaii, this day of COUNTY COUNCIL County of Hawaii Hilo, Hawaii INTRODUCED BY: 2023. COUNCIL MEMBER, COUNTY OF HAWAI'l I hereby certify that the foregoing RESOLUTION was by the vote indicated to the right hereof adopted by the COUNCIL of the County of Hawaii on ATTEST: ROLL CALL VOTE AYES NOES ABS EX EVANS GALIMBA IN ABA KAGIWADA KANEALI'I-KLEINFELDER KIERKIEWICZ KIMBALL LEE LOY VILLEGAS COUNTY CLERK CHAIRPERSON & PRESIDING OFFICER RESOLUTION NO. 11.