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HomeMy WebLinkAboutRES 134 Draft 01 2016-2018 01/ COUNTY OF HAWAII i•'i"„t':•`: STATE OF HAWAII RESOLUTION NO. 134 17 A RESOLUTION AUTHORIZING THE EMPLOYMENT OF SPECIAL COUNSEL TO PROVIDE THE HAWAII COUNTY COUNCIL OBJECTIVE,COMPREHENSIVE LEGAL SERVICES REGARDING THE CANCELLATION OF THE SERVICE AGREEMENT BETWEEN THE COUNTY OF HAWAII AND HAWAIIAN EARTH RECYCLING, LLC. WHEREAS, the Hawai`i County Charter (2016 Edition), provides in Article VI, Chapter 5, Section 6-5.5 that"[t]he council, may,by two-thirds vote of its entire membership, authorize the employment of special counsel for any special matter presenting a real necessity for such employment"; and WHEREAS, the County Council requires legal consultation on matters that the Office of the Corporation Counsel has rendered itself unable to opine upon in an objective and comprehensive manner, due to the Corporation Counsel's vigorous defense and representation of the Mayor's position regarding the cancelling of the Service Agreement for an Organic Waste Diversion Program on East Hawai`i and West Hawaii between the County of Hawai`i and Hawaiian Earth Recycling, LLC (hereinafter"Contract"); and WHEREAS,the Office of the Corporation Counsel has clearly articulated its position on the cancellation of the Contract via public statements during the March 7, 2017, Committee on Environmental Management meeting,during an executive session held on March 21, 2017, of that same committee, and per Mr. Joseph Kamelamela's March 6, 2017, letter to Mr. John Brigham (Senior Vice President of Hawaiian Earth Recycling, LLC); and WHEREAS, the March 6, 2017, letter from the Corporation Counsel includes strong, unambiguous statements, such as: (1) "Instead of complying with the contractual terms delineated in Section 15.6, HER attempts to convince the County to rescind its Termination Notice by making specious allegations of bad faith, and misrepresentations as to the operation of the provisions of the contract."; (2) "HER would be well advised to not attempt to unjustly enrich itself through unjustifiable claims and demands for additional payments that are not supported by the Contract or law."; (3) "HER cannot prevail in a bad faith suit against the County because there is not a scintilla of evidence for its claim."; and WHEREAS, due to the potential for legal action being taken against the County of Hawaii and the negative financial impacts that the Administration's actions could have to our taxpayers relating thereto, and also what appears to be a summary dismissal and lack of serious consideration on the part of the Corporation Counsel of such potential impacts, the County Council believes that it is in the best interest of the County to seek objective, comprehensive legal counsel and representation regarding the Mayor's decision to cancel the Contract, including, but not limited to: (1) An assessment of the use of the"terminate for convenience" clause as a viable means to cancel the Contract, particularly in light of the requirements pertaining to such use as laid out in the Hawai`i Administrative Rules; (2) An analysis of the Mayor's unilateral authority to cancel contracts that were specifically authorized by the Council by way of a resolution; (3)An objective analysis of the potential liability the County may incur should the contract with Hawaiian Earth Recycling, LLC be cancelled; and (4)Exploring the possibility of seeking legal action for the purpose of enjoining the Administration from following through with the contract cancellation; and WHEREAS, section 6-5.5 of the Hawaii County Charter(2016 Edition) further provides that"[ably such authorization shall specify compensation, if any,to be paid for said services"; and WHEREAS,the County Council desires to obtain special counsel for a period of no more than six (6) months at a rate of no more than one hundred eighty-five dollars ($185) per hour, for a total not to exceed $50,000 for services performed by special counsel; and WHEREAS, funding for retaining of special counsel shall be provided from the operating budget of the Office of the Corporation Counsel; now, therefore, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that pursuant to Article VI, Chapter 5, Section 6-5.5 of the Hawai`i County Charter(2016 Edition), it hereby authorizes the employment of special counsel for those matters described herein that cannot be adequately provided by the Office of the Corporation Counsel due to its vigorous defense and representation of the Mayor's determination to cancel the service agreement between the County of Hawai`i and Hawaiian Earth Recycling, LLC. BE IT FURTHER RESOLVED that said special counsel, if so retained, shall be selected by and serve at the direction of the Chair of the County Council and the Chair of the Environmental Management Committee. 2 BE IT FINALLY RESOLVED that the Clerk shall transmit copies of this resolution to the Honorable Mayor Harry Kim, Joseph K. Kamelamela- Corporation Counsel, and Collins Tomei -Director of the Department of Finance. Dated at Hilo , Hawai`i,this 5th day of April , 2017 . INTRODUCED BY: COUNCIL MEMBR, COUNTY OF HAWAII COUNTY COUNCIL ROLL CALL VOTE County of Hawai`i AYES NOES ABS EX Hilo, Hawai`i CHUNG X DAVID X I hereby certify that the foregoing RESOLUTION was by EOFF X the vote indicated to the right hereof adopted by the COUNCIL of the KANUHA County of Hawaii on April 5, 2017 X LEE LOY X O'HARA X ATTEST: POINDEXTER X RICHARDS X ti • RUGGLES X Z./ 9 0 0 0 Reference: C-190/Waived FC COUNTY CLERK CHAIRPERSON&PRESIDING OFFICER RESOLUTION NO. 13'4' 3