HomeMy WebLinkAbout2007 CON County of San Diego Copermittees - Amendment MOU 2MEMORANDUM OF UNDERSTANDING
BY AND BETWEEN CO-PERMITTEES
REGARDING SHARING OF COSTS ASSOCIATED WITH
PROSECUTION OF UNFUNDED STATE MANDATES CLAIM
This Memorandum of Understanding ("MOU") is entered into as of this 28th day of
June 2007 by and between the following local government agencies located in San
Diego County: The County of San Diego; City of Carlsbad, City of Chula Vista, City of
Coronado, City of Del Mar; City of El Cajon; City of Encinitas, City of Escondido; City
of Imperial Beach; City of La Mesa; City of Lemon Grove; City of National City; City of
Oceanside; City of Poway; City of San Diego, City of San Marcos; City of Santee;
City of Solana Beach, and City of Vista (collectively, Co-permittees") with regard to
the following:
RECITALS
A. Co-permittees are individually and collectively subject to Order No. R9-
2007-0001/NPDES Permit No. CAS0108758 ("Permit") adopted by the California
Regional Water Quality Control Board, San Diego Region ("Regional Board") on
January 24, 2007.
B. Neither the Regional Board nor the State Water Resources Control
Board have acknowledged that any portion of the Permit constitutes a State mandate
that exceeds the scope of the Federal Clean Water Act and its implementing
regulations. Co-permittees believe that portions of the Permit do in fact constitute
unfunded State mandates and that pursuant to Article XIII B §6 of the California
Constitution, a State subvention of funds is required before Co-permittees must
implement those portions that exceed the Federal requirements.
C. Co-permittees desire to pursue the issue of unfunded State mandates,
and believe that the necessary administrative and procedural actions associated with
the same should be jointly undertaken to present a unified and coordinated front and
to achieve cost savings where possible. These actions have included and will
include, but may not be limited to, the following: Petition to the State Water
Resources Control Board; preparation and presentation of a Test Case before the
State Mandates Commission; Petition for Writ of Mandate; Appeals; Re -hearing and
potential settlement with the State Mandates Commission (collectively, "Mandates
Claim").
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and of the Recitals, it is mutually agreed by and between the parties as
follows:
1. Draft Budget. Co-permittees have prepared a draft budget of presently
anticipated costs and expenses associated with pursuit of the Mandates Claim and
Page 1 of 27 Memorandum of Understanding
the elements thereof, which budget is attached hereto as Exhibit A and incorporated
herein by reference ("Draft Budget"). Co-permittees acknowledge that the Draft
Budget is based on information presently known, that it is only an estimate of
potential costs and expenses, and agree that they will share the actual costs and
expenses for the Mandates Claim as outlined herein.
2. Mandates Claim Counsel, Lead Counsel. The work contemplated by this
Agreement shall be performed by the legal counsel identified in the attached Draft
Budget ("Mandates Claim Co -Counsel"). Co-permittees agree that County Counsel
for the County of San Diego shall be identified as lead counsel and that the County of
San Diego shall be the Test Claimant in the Test Case. In the event a Test Case is
filed, each Co-permittee, including those represented by Mandates Claim Co -
Counsel, may join as an Interested Party.
3. Obligations of Co-permittees - Petition to the State Water Resources Control
Board. Except with respect to the efforts of Mandates Claim Co -Counsel as
addressed in Section 5, below and Exhibit A, Co-permittees, and each of them, shall
hold the remaining Co-permittees harmless from costs and expenses associated with
the efforts expended by their individual attorneys in this regard.
4. Obligations in Test Case and Associated "Appeals". While County of San
Diego shall prepare documents on behalf of Co-permittees for the Test Case and
associated "appeals", Co-permittees acknowledge and agree that Mandates Claim
Co -Counsel may assist in preparing such documents. All documents shall be
distributed to each attorney for Co-permittees for review. In the event a Co-permittee
joins as an Interested Party, such joinder documents shall be distributed to all
individual attorneys for Co-permittees for review. Except with respect to the efforts of
Mandates Claim Co -Counsel as addressed in Section 5, below and Exhibit A, Co-
permittees, and each of them, shall hold the remaining Co-permittees harmless from
costs and expenses associated with the efforts expended by their individual attorneys
in this regard.
5. Cost Sharing by Co-Permittees. Co-permittees agree that the costs and
expenses associated with pursuit of the Mandates Claim shall be allocated among
the Co-permittees as follows:
5.1 Co-permittees agree to utilize the formula for the allocation of costs and
expenses set forth in Section IV.B of that certain NPDES San Diego Regional
Stormwater Copermittees Memorandum of Understanding dated December 3, 2001,
modified hereinbelow as necessary to eliminate references to entities not party to this
Agreement and to individual program cost expenses not allocated by this Agreement.
5.1.1 Ten percent (10%) of the cost shall be divided equally among all
Copermittees.
Page 2 of 27 Memorandum of Understanding
5.1.2 Forty-five percent (45%) of the cost shall be divided based on
population. Population -based costs shall be divided among all Copermittees as
follows:
5.1.2.1 The percentage of Population Share Costs for which
each Copermittee is responsible shall be calculated by dividing their total population
by the combined total population of all participating Copermittees within San Diego
County. These percentages shall be calculated using the "Household" population
figures of the San Diego Association of Governments (SANDAG) "Population and
Housing Estimates" for the year 2000 or as formally updated or amended by
SANDAG.
5.1.2.2 The calculation of the County's population shall be
based upon the entire population of the unincorporated County.
5.1.3 Forty-five percent (45%) of the cost shall be based on urbanized
land area to be divided among all participating Copermittees as follows.
5.1.3.1 The percentage of land area costs for which each
Copermittee is responsible shall be calculated by dividing their total urbanized land
area by the combined total urbanized land area of all participating Copermittees
within the geographic area applicable to the shared program or activity.
5.1.3.2 These totals shall be calculated using the most
recently available San Diego Association of Governments (SANDAG) land use
statistics.
5.2 Mandates Claim Co -Counsel shall each submit their invoices and
statements of work to Lounsbery Ferguson Altona & Peak, Attn: Helen Holmes Peak,
on at least on a quarterly basis reflecting such costs and expenses, and the Co-
permittees agree that Helen Holmes Peak shall facilitate payment for the same in the
same manner and method as the Co-permittees have borne shared technical and
associated costs relating to the Permit to date. Work performed by County Counsel
as Mandates Claim Co -Counsel shall be accounted for and shall represent a credit in
favor of Co-permittee, County of San Diego against its share of Mandates Claim
costs and expenses. Co-permittees shall each submit payment for their share of
such costs and expenses to Helen Holmes Peak within forty-five (45) days of receipt
of Helen Holmes Peak's request for the same. Such costs and expenses shall be
deemed to have accrued from and after January 24, 2007.
6. Sharing of Costs with Other Entities When Feasible. To the extent possible,
Mandates Claim Counsel shall endeavor to share costs with other entities that may
be pursuing their own remedies with respect to the Permit. For example, Co-
permittees may share the cost of the transcript of the Regional Board hearings on the
Permit with the Building Industry Association.
Page 3 of 27 Memorandum of Understanding
7. Conflict of Interest. Co-permittees acknowledge and agree that Mandates
Claim Counsel represent individual entities within the Co-permittee group for all
purposes. Individual Mandates Claim Counsel may also have unrelated matters
pending before other entities within the Co-permittee group. Participation in a joint
prosecution of the Mandates Claim as contemplated by this Agreement shall not be
considered to constitute representation by counsel for any individual Co-permittee of
another Co-permittee, nor shall such participation be grounds to disqualify counsel or
experts from representing any Co-permittee. For purposes of pursuit of the
Mandates Claim, each individual Co-permittee acknowledges such other
representation, or possibility of such other representation, agrees to the participation
of Mandates Claim Counsel, and each of them, in the Mandates Claim, and waives
any conflict of interest that may arise or be created as a result of the involvement of
Mandates Claim Counsel in the Mandates Claim, or between Co-permittees and/or
their counsel and experts as a result of this Agreement.
8. Joint Prosecution of Mandates Claim. Co-permittees agree that all
communications between Co-permittee counsel in furtherance of the purpose of this
Agreement shall be protected by the attorney -client privilege and the attorney work -
product privilege to the fullest extent permitted by the law. Each Co-permittee will
take all reasonable steps necessary to protect such communications and information
from disclosure to third parties not subject to this Agreement. If such information is
demanded by any person, each Co-permittee shall assert all relevant privileges.
9. Withdrawal from Agreement. Any Co-permittee may withdraw from
participation in this Agreement upon fifteen (15) days' prior written notice to the other
Co-permittees, and payment of its share of costs and expenses incurred through the
date of termination. If a Co-permittee withdraws from this Agreement under this
paragraph, the withdrawing Co-permittee and the remaining Co-permittees will
remain obligated to preserve the confidentiality of all confidential information received
from or disclosed to the withdrawing Co-permittee pursuant to this Agreement. A
withdrawing Co-permittee will remain obligated under Paragraphs 7 and 8 of this
Agreement and will not assert participation in this Agreement as grounds for
disqualification of counsel or experts of any Co-permittee and agrees to waive any
conflict that may be created between Co-permittees and/or their counsel and experts
as a result of this Agreement. A withdrawing Co-permittee will have no other
obligation under this Agreement, with the exception of its share of costs incurred
through the date of its withdrawal. Upon the withdrawal of any Co-permittee, the
remaining Co-permittees shall continue to share costs and expenses in the resultant
number of equal shares.
10. Breach. Co-permittees, and each of them, shall have the right, in the event of
any breach of any agreement or covenant contained herein by the other parties, to
exercise all of the rights and remedies, and to maintain any actions at law or suit in
equity or other proper proceedings to enforce the curing of such breach of agreement
or covenant. Damages, if any, arising from any breach of this Agreement shall be
Page 4 of 27 Memorandum of Understanding
limited to the amount due and owing under the cost sharing mechanism set forth in
Sections 5 and 6, above, at the time of the alleged breach.
11. Notices. Unless otherwise specifically permitted by this MOU, all notices or
other communications required or permitted under this MOU shall be in writing, and
shall be personally delivered or sent by registered or certified mail, postage prepaid,
return receipt requested, or sent by telecopy, provided that the telecopy cover sheet
contain a notation of the date and time of transmission, and shall be deemed
received: (i) if personally delivered, upon the date of delivery to the address of the
person to receive such notice, (ii) if mailed in accordance with the provisions of this
paragraph, two (2) business days after the date placed in the United States mail, (iii)
if mailed other than in accordance with the provisions of this paragraph or mailed
from outside the United States, upon the date of delivery to the address of the person
to receive such notice, or (iv) if given by telecopier during business hours when
delivered can be confirmed, when delivered. Notices shall be given at the following
addresses:
To County of San Diego: Attn: Walter F. Ekard
County Chief Administrative Officer
1600 Pacific Highway, Room 209
San Diego, CA 92101
Telephone: 619-531-5250
Facsimile: 619-557-4060
To City of Carlsbad: Attn: Lisa Hildabrand, Interim City Manager
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Telephone: 760-434-2821
Facsimile 760-720-9461
To City of Chula Vista: Attn: David Garcia, City Manager
276 Fourth Avenue
Chula Vista, CA 91910
Telephone: 619-691-5031
Facsimile: 619-585-5774
To City of Coronado: Attn: Mark Achenduszko, City Manager
1825 Strand Way
Coronado, CA 92118
Telephone: 619-522-7335
Facsimile: 619-522-7846
Page 5 of 27 Memorandum of Understanding
To City of Del Mar: Attn: Lauraine Brekke-Esparza, City Manager
1050 Camino del Mar
Del Mar, CA 92014
Telephone: 858-755-9313
Facsimile: 858-755-2794
To City of El Cajon: Attn: Kathi Henry, City Manager
200 E. Main Street
El Cajon, CA 92020
Telephone: 619-441-1716
Facsimile: 619-441-1770
To City of Encinitas Attn: Phillip E. Cotton, City Manager
505 S. Vulcan Avenue
Encinitas, CA 92024
Telephone: 760-633-2610
Facsimile: 760-633-2627
To City of Escondido: Attn: Clay Phillips, City Manager
201 North Broadway
Escondido, CA 92025
Telephone: 760-839-4578
Facsimile: 760-839-4578
To City of Imperial Beach Attn: Gary R. Brown, City Manager
825 Imperial Beach Blvd.
Imperial Beach, CA 91932
Telephone: 619-423-8303
Facsimile: 619-628-1395
To City of La Mesa Attn: Sandra L. Keri, City Manager
8131 Allison Avenue
La Mesa, CA 91941
Telephone: 619-667-1105
Facsimile: 619-667-1131
To City of Lemon Grove: Attn: Graham Mitchell, City Manager
3232 Main Street
Lemon Grove, CA 91945
Telephone: 619-825-3800
Facsimile: 619-825-3804
Page 6 of 27 Memorandum of Understanding
To City of National City: Attn: Chris Zapata, City Manager
1243 National City Blvd
National City, CA 91950
Telephone: 619-336-4240
Facsimile: 619-336-4327
To City of Oceanside: Attn: Peter A. Weiss, Interim City Manager
300 North Coast Hwy
Oceanside, CA 92054
Telephone: 760-735-4365
Facsimile: 760-435-3078
To City of Poway: Attn: Rod Gould, City Manager
P.O. Box 789
13325 Civic Center Drive
Poway, CA 92064
Telephone: 858-668-4500
Facsimile: 858-668-1207
To City of San Diego: Attn: Gerald R. Sanders, Mayor
Office of the Mayor
City of San Diego
202 "C: Street, 11th Floor
San Diego, CA 92101
To City of San Marcos: Attn: Paul Malone, City Manager
1 Civic Center Drive
San Marcos, CA 92069
Telephone: (760) 744-1050, ext. 3114
Facsimile: (760) 744-7543
To City of Santee: Attn: Keith Till, City Manager
10601 Magnolia Avenue
Santee, CA 92071
Telephone: 619-258-4100 x100
Facsimile: 619-562-0649
To City of Solana Beach: Attn: David Ott, City Manager
635 S. Hwy 101
Solana Beach, CA 92075
Telephone: 858-720-2431
Facsimile: 858-792-6513
Page 7 of 27 Memorandum of Understanding
To City of Vista:
Attn: Rita Geldert, City Manager
600 Eucalyptus Avenue
Vista, CA 92084
Telephone: 760-726-1340 x1401
Facsimile: 760-639-6132
12. No Employment, Partnership. Nothing contained in this Agreement shall be
deemed or construed to create an employment, partnership, joint venture or any
other similar relationship between the parties hereto or cause Co-permittees to be
responsible in any way for the debts or obligations of other individual Co-permittees,
or any other person.
13. Authority to Sign. Each Co-permittee warrants and represents that the
persons executing this MOU on its behalf has full authority to do so and to bind such
Co-permittee to perform pursuant to the terms and conditions of this Agreement.
14. Counterparts. This Agreement may be signed in multiple counterparts with the
same force and effect as if all original signatures appeared on one copy; and in the
event this Agreement is signed in counterparts, each counterpart shall be deemed an
original and all of the counterparts shall be deemed to be one agreement.
15. Severability. If any portion of this Agreement shall be held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable, the remaining
provisions shall remain enforceable to the fullest extent permitted by law if
enforcement would not frustrate the overall intent of the parties (as such intent is
manifested by all provisions of the Agreement, including such invalid, void or
otherwise unenforceable portion).
16. Attorneys' Fees. Should any litigation (including any proceedings in a
bankruptcy) or arbitration be commenced between the parties hereto or their
representatives concerning any provision of this Agreement or the rights and duties
of any person or entity hereunder, the party or parties prevailing in such litigation or
arbitration shall be entitled, in addition to such other relief as may be granted, to the
attorneys' fees and court or arbitration costs incurred by reason of such litigation or
arbitration, including attorneys' fees and experts' fees incurred in preparation for or
investigation of any matter relating to such litigation or arbitration.
17. Applicable Law. This Agreement shall be construed in accordance with, and
governed by, the laws of the State of California.
18. Headings. The headings in this Agreement are inserted only as a matter of
convenience, and in no way define, limit, extend or interpret the scope of this
Page 8 of 27 Memorandum of Understanding
Agreement or of any particular provision hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
THE COUNTY OF SAN DIEGO
B
ansone
ouy Counsel
Approved as t . Fo
,L
Ma Jo Lan ':fa e
Senior Dep . unty ounsel
County of San Diego
[THIS SPACE INTENDED TO BE BLANK]
Page 9 of 27 Memorandum of Understanding
THE CITY OF CARLSBAD
By/ �-
lisa Hildabrand
Interim City Manager
Attest:
Lorrain4M. Wood, City Clerk
City of Carlsbad
Approved as to Form:
onald R. Bali, City Attorney
/zit Q!* i4 '@'v
City of Carlsbad
[THIS SPACE INTENDED TO BE BLANK]
Page 10 of 27 Memorandum of Understanding
THE CITY OF CHULA VISTA
By:
vi • Gar
City Manager
Attest:
onna Norris, Interim City Clerk
City of Chula Vista
Approved as to Form:
Bart Miesfeld, Interim City Attorney
City of Chula Vista
[THIS SPACE INTENDED TO BE BLANK]
Page 11 of 27 Memorandum of Understanding
THE CITY OF CHULA VISTA
By:
David Garcia
City Manager
Attest:
Donna Norris, Interim City Clerk
City of Chula Vista
Approved as to Form:
Ba Miesfeld, m City Attorney
City of Chula i a
[THIS SPACE INTENDED TO BE BLANK]
Page 11 of 27 Memorandum of Understanding
THE CITY OF CORONADO
By:
M. k 0 duszko
City M. •er
Attest:
4/V\0),k StWeLi
Linda K. Hascup, City Clerk p
City of Coronado
Approved as to Form:
[THIS SPACE INTENDED TO BE BLANK]
Page 12 of 27 Memorandum of Understanding
THL MAR
Ka en Brus
C y Manager
Attest:
44/1-&t:
Mercedes Martin, City Clerk
City of Del Mar
Approved as to Form:
/
Tamara Smith, City Attorney
City of Del Mar
[THIS SPACE INTENDED TO BE BLANK]
Page 13 of 27 Memorandum of Understanding
THE CITY OF EL CAJON
By: i;` L 4
d.,
Kathi Henry
City Manager
Attest:
Kat ie Rutle• _ e, itv' Jerk
City o I Cajon
Approved as to Form:
fit
Moran oley, ttorney
Ci ►, of - Cajon
[THIS SPACE INTENDED TO BE BLANK]
Page 14 of 27 Memorandum of Understanding
THE CITY OF ENCINITAS
By: --11 -
Phillip E. Cotton
City Manager
Attest:
eborah Cervone, City Clerk
City of Encinitas
Approved alto Form:
Gfen Sabine, City Attorney
Encinitas
[THIS SPACE INTENDED TO BE BLANK]
Page 15 of 27 Memorandum of Understanding
THE CITY OF ESCONDIDO
By>'
ay Pips
City Manager
Attest:
Marsha Whalen, City Clerk 7_/,- 9
City of Escondido
ed as to _• rm:
Je
City of Escondido
[THIS SPACE INTENDED TO BE BLANK]
ney
Page 16 of 27 Memorandum of Understanding
THE CITY OF IMPERIAL BEACH
By:
Gary R. Br' n
City Manager
Attest:
114
e
e M. Haid, City CI - rk
perial Beach
d as toF•
ifs P. LouCity Alta e
f Imperial Beach
[THIS SPACE INTENDED TO BE BLANK]
Page 17 of 27 Memorandum of Understanding
THE CITY OF LA MESA
(...-�
By: , I
►.. .. .. i Cam, 14-
Sa • ra L. Kerl
City Manager
Attest:
Mary J. Kengdy, City Clerk
City of La Mesa
Approve as to Form:
Glenn Sabine, City Attorney
City of La Mesa
[THIS SPACE INTENDED TO BE BLANK]
Page 18 of 27 Memorandum of Understanding
THE CITY OF LEMON GROVE
By:
Graham Mitchell
City Manager
Attest:
Susan Garcia, City Clerk
City of Lennon Grove
Approved as t¢-FQr
es P. Lough, City Attorney
of Lemon Grove
[THIS SPACE INTENDED TO BE BLANK]
Page 19 of 27 Memorandum of Understanding
THE CITY F NATIONAL CITY
By:
Chris Zap
City Mana•er
Attest:
Mic ael Dalla, C. Clerk
City of National City
Approved as to Form:
George Eiser, City Attorney
City of National City.
[THIS SPACE INTENDED TO BE BLANK]
Page 20 of 27 Memorandum of Understanding
THE CITY OF OCEANSIDE
By:
eter A. Weiss
Interim City Manager
Attest:
Barbara Rie I Wayne.-cClerk
City of Oceanside
Approved as to Form:
Mullen, City Attorney
ity of Oceanside
[THIS SPACE INTENDED TO BE BLANK]
Page 21 of 27 Memorandum of Understanding
THE CITY OF POWAY
By:
Rod Gould
City Manager
Attest:
Diane Shea, City Clerk
City of Poway
Approved as to Form:
Lisa Foster, City Attorney
City of Poway
[THIS SPACE INTENDED TO BE BLANK]
Page 22 of 27 Memorandum of Understanding
THE CI
By:
Paul Malone
City Manager
Attest:
Susie Vasquez, Cit
City of San Marc
Approved as to Form:
elen Holmes Peak, City Attorney
City of San Marcos
[THIS SPACE INTENDED TO BE BLANK]
Page 24 of 27 Memorandum of Understanding
THE CITY OF SANTEE
By:
Keith Till
City Manager
Aftest:
LipdaiTroyan City Clerk
Santee
Approved as to Form:
Shawn Hagerty, City Attorney
City of Santee
[THIS SPACE INTENDED TO. BE BLANK]
Page 25 of 27 Memorandum of understanding
THE
By:
Davi
Mana
Atte
Bela Ive City
City of Sol = na Beach
A• proved as t
gh, City Attorney
of Solana Beach
[THIS SPACE INTENDED TO BE BLANK]
Page 26 of 27 Memorandum of Understanding
THE CITY OF VISTA
By:
eldert
City anager
Attest:
t
Marti Ki ' n City Clerk
City of Vista
Approved as to Form:
Darold Pier, City Attorney
City of Vista
Page 27 of 27 Memorandum of Understanding
DRAFT BUDGET FOR UNFUNDED STATE MANDATES CLAIM
This is a proposed budget for the unfunded state mandates action by the San Diego Co-
permittees. This action involves a number of different procedural steps and the budget is divided
into five phases that correspond to these various procedural steps. Specifically, the budget is
divided as follows: (1) Petition to the State Water Resources Control Board; (2) Test Case before
the State Mandates Commission; (3) Petition for Writ of Mandate; (4) Appeals; (5) Re -hearing
and possible settlement with the State Mandates Commission.
This budget is based upon an hourly partner rate of $225 per hour, an associate rate of $185 per
hour, and a paralegal rate of $135 per hour. The work on this matter will be handled by Jim
Lough of McDougal, Love, Eckis, Smith, Buchman & Foley; Shawn Hagerty of Best Best &
Krieger; Helen Holmes Peak of Lounsbery, Ferguson, Altona & Peak; and the San Diego County
Counsel's office. The budget is based upon information known at this time and represents an
estimate of potential costs. It will, however, need to be adjusted as the Co-permittees move
through the process.
1) Petition to State Water Resources Control Board
Filing the petition to the State Board involves a number of requirements. The petition must be
filed within 30 days of the Regional Board's final action, and must include specific information.
Among other things, the petition must include a statement of the reasons the Regional Board's
action was inappropriate, how the petitioners were aggrieved, a description of the action the
petitioners want the State Board to take, and a memorandum of points and authorities in support
of the petitioners' position.
A petition to stay the Regional Board's action must be filed as part of the petition if a stay is
desired. The petition must contain a request for stay and must allege that there will be (1)
substantial harm to the petitioners if the stay is not granted; (2) no substantial harm to other
parties if the stay is granted; and (3) there are substantial questions of law or fact regarding the
disputed action.
The State Board may or may not require a hearing on the matter. If the Board decides to issue a
stay it must hold a hearing that includes all interested parties. Because there are so many
interested parties to this Regional Board action there. are likely to be a number of petitions and
requests for stays to the State Board. That may increase the likelihood that the State board will
require a hearing.
Task
Hours
Cost
Draft and File Petition for
Review of Regional Board
Action
50
$10,000
1
S D PU B\A MON ETTE\343 l 3 8.2
Task
Hours
Cost
Prepare for and Attend
Hearings on Petition Before
State Board
40
$8,200
Total Cost
90
$18,200
2) Test Case Before the State Mandates Commission
Filing a test case with the State Mandates Commission requires the petitioners to submit: (1) a
written narrative identifying the specific sections of the state action at issue that contain a state
mandate as well as an estimate and description of the new costs incurred and how the state action
will increase these costs; (2) an identification of prior State Mandate Commission decisions that
may be related to the mandate at issue; (3) declarations regarding the cost estimates; and (4)
documentation of all sources, legal and otherwise, cited in the narrative.
Prior to the hearing on the claim, the Commission may hold a pre -hearing conference with the
parties to identify issues regarding a claim and to determine methods of resolving those issues if
possible.
If the test case is successful, the petitioners must develop proposed parameters and guidelines
that describe the activities and costs that are eligible for reimbursement. The Commission hears
and adopts, or amends or denies the claimant's proposed parameters and guidelines. If the
Commission adopts the parameters, the next step for the petitioners is to file a claim with the
state for reimbursement.
Task
Hours
Cost
Draft and File Test Case
200
$50,000
Attend Pre -hearing
Conferences
20
$4,100
Attend Hearing on Test Case
Before the Commission
60
$12,300
Develop proposed parameters
and guidelines for activity
reimbursement
60
$12,300
2
SDPU B\A MON ETTE\343138.2
Task
Hours
Cost
File Reimbursement Claim
with State
60
$12,300
Expert Fees
N/A
$100,000
Total Cost
280
$191,000
3) Petition for Writ of Mandate in State Court
If the State Mandates Commission denies that it has the ability to hear the test claim, or hears the
test claim and denies that it represents an unfunded state mandate, the Commission's decision
will need to be challenged in state court using the writ of mandate process.
Task
Hours
Cost
Prepare and File Petition for
Writ of Mandate in State
Court
100
$20,500
Prepare Administrative
Record
60
$12,300
Attendance at Procedural
Hearings
20
$4,100
Prepare Opening Brief
100
$20,500
Prepare Reply Brief
60
$12,300
Prepare for and Attend
Hearing on Writ
120
$24,600
Prepare Post -Trial Papers
30
$6,150
Total Cost
490
$100,450.00
3
S D P U B\A M O N ETTE\3 4 3 13 8.2
Total Cost
80
$16,400
6) Total Estimate For All Phases
Phase
Hours
Cost
Phase 1
90
$18,200
Phase 2
280
$191,000
Phase 3
490
$100,450
Phase 4
660
$135,300
Phase 5
80
$16,400
Total
1,600
$461,350.00
S D PU B\A MON ETTE\34313 8.2