To: Board of Supervisors County of Sonoma
Department or Agency Name(s): County Counsel
Staff Name and Phone Number: Jennifer Klein, Chief Deputy County Counsel, 707.565.2421
Vote Requirement: 4/5th
Supervisorial District(s): Countywide
Title:
Title
Amendment to Existing Legal Service Agreement for On Call Land Use Counsel-Best Best & Krieger LLP
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Recommended Action:
Recommended action
Authorize County Counsel to execute a third amendment to the on-call legal service agreement with Best Best & Krieger LLP for representation of the County in land use and public law matters, including defense of the Riverkeeper litigation challenging the County’s well ordinance amendments, and to increase the not-to-exceed aggregate amount by $275,000, for a new total not to exceed cap of $725,000.
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Executive Summary:
On July 27, 2021, the County entered agreements with three firms for land use legal services on an on-call basis, following an RFP process. Each firm specializes in representing public agencies and has expertise in land use and public law matters. The firms are: Best Best & Krieger LLP, Burke Williams & Sorensen LLP, and Richards Watson & Gershon. Each has provided the County services under the agreements ranging from litigation defense to advisory work when County Counsel lacked capacity.
All agreements were amended on January 31, 2023, to increase the initial $150,000 contract amount by $150,000. Burke, Williams & Sorensen’s agreement was amended by County Counsel on March 8, 2024, to add employment investigations to the scope of work, as an additional specialized need. On July 25 2024, the Board authorized amendments to the three agreements to extend their terms by an additional three years, through July 26, 2027, for a full term of six years, to increase the not to exceed contract amount by an additional $150,000, for a total cap of $450,000 over the full term of each contract, and to make other non-substantive changes. The July 2024 amendments also authorized rate increases below an inflation factor, which continued to maintain the County’s public sector discount for services provided by two firms: Best Best & Krieger LLP, which has provided services in defense of the Riverkeeper litigation, and Richards Watson & Gershon, related to defense of litigation arising out of the approval of the Sonoma Development Center Specific Plan.
The current item proposes to increase the not to exceed amount of Best Best & Krieger’s agreement due to the ongoing demands associated with defending the pending Riverkeeper litigation, which is now in the Court of Appeal, and related matters.
Discussion:
The County has a continuing need to maintain extra capacity to provide legal services to its clients primarily in land use project review, environmental review, comprehensive planning, and litigation, on an on-call, as needed basis. These needs are not always consistent and staffing flexibility and use of on call agreements provides efficiencies in fulfilling client needs. The County may contract with and utilize more than one outside counsel for such on-call legal services, but is not obligated to utilize any outside counsel, and no work is guaranteed under any contract. The immediate need to increase the Best Best & Krieger agreement stems from the demands of the Riverkeeper litigation, related to a challenge brought to the County’s adoption of amendments to its well ordinance.
Some of the requested services under the agreement’s scope of work have included defense or prosecution of complex land use litigation, advising on large, time sensitive comprehensive planning initiatives, and legal review and counsel to staff in the land use entitlement process for private projects, including review of environmental documents to ensure consistency with the California Environmental Policy Act (CEQA), when applicable, as well as administrative hearings and appeals. Best Best & Krieger LLP, continues to have specialized expertise in land use matters, government representation, as well as competitive rates which include public sector discounts. It has also provided defense of the Riverkeeper suit throughout the pendency of that litigation. To maintain capacity to cover legal needs and avoid a gap in service including for pending litigation and projects, County Counsel recommends your Board authorize County Counsel execute an amendment to increase the total compensation under Best Best and Krieger’s agreement by $275,000, for a total not to exceed amount over the agreement’s six-year term of $725,000. The current agreement will expire July 27, 2027.
County Counsel originally issued a Request for Proposals (RFP) to law firms who specialize in representing public agencies in land use matters to increase capacity to provide both advisory and litigation related land use legal services. Nine law firms submitted a response that conformed to all material requirements. County Counsel carefully reviewed and analyzed the proposals. After selecting and interviewing six finalists, County Counsel issued a notice of intent to award contracts to three of the finalists in Spring 2021, to comprise its panel of on-call land use counsel. Thereafter, the Board in July 2021 authorize on-call legal services agreements with the three selected firms: Best Best & Krieger LLP; Burke Williams & Sorensen LLP; and Richards Watson & Gershon. Each contract has previously been amended to extend its term and increase its not to exceed cost cap, and to make other changes related to the scope of services and applicable public sector rates. Presently, the only on-call legal services agreement proposed for amendment is the agreement with Best Best and Krieger, due to the demands of the Riverkeeper litigation.
The funding for this and all the on-call land use legal service agreement comes from a variety of sources depending on the matter requiring legal services, such as the litigation contingency fund, at -cost agreement reimbursements, grant funding for specific planning initiatives, and other client department funds programed for legal services, as needed. Execution of these agreements does not require additional appropriations.
Strategic Plan:
N/A
Racial Equity:
Was this item identified as an opportunity to apply the Racial Equity Toolkit?
No
Prior Board Actions:
July 27, 2021: Board authorization for On-call Legal Services Agreement with Best Best & Krieger LLP, Burke Williams & Sorensen LLP, and Richards Watson & Gershon.
January 31, 2023: First Amendment to On-call Legal Services Agreements with Best Best & Krieger LLP, Burke Williams & Sorensen LLP, and Richards Watson & Gershon.
March 8, 2024, Second Amendment to On-Call Legal Services Agreement with Burke Williams & Sorenson LLP.
July 25, 2024, Second Amendment to On-Call Legal Services Agreements with Best Best & Krieger LLP, and Richards Watson & Gershon; and Third Amendment to Agreement with Burke Williams & Sorenson LLP Third Amendment.
Fiscal Summary
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FY26-27 Projected |
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Narrative Explanation of Fiscal Impacts:
Although County Counsel will continue to handle most land use litigation and advisory work, outside counsel is utilized in cases of conflict, lack of capacity or where there is a need for specialized legal services. Financing of legal expenses will be designated at the time of specific case retention or assignment and will vary depending on the nature of the litigation or assignment, including but not limited to, permit fees and long-range planning initiative grants. County Counsel is estimating that outside on-call land use counsel may spend 100 hours or more per year for services related to these contracts. However, engaging services are not guaranteed and thus usage will vary year-over-year, which prevents staff for defining a specific annual fiscal impact.
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Narrative Explanation of Staffing Impacts (If Required):
None
Attachments:
Attachment A: Original On-call Legal Services Agreement (LSA) with Best Best & Krieger LLP
Attachment B: First Amendment to On-call LSA with Best Best & Krieger LLP
Attachment C: Second Amendment to On-call LSA with Best Best & Krieger LLP
Attachment D: Third Amendment to On-call LSA with Best Best & Krieger LLP (PROPOSED)
Related Items “On File” with the Clerk of the Board:
None