DATE: January 23, 2024
TO: Board of Supervisors
SUBMITTED BY: Daniel C. Cederborg, County Counsel
SUBJECT: Specialized Legal Services Agreement with Best, Best & Krieger, LLP - General Plan
RECOMMENDED ACTION(S):
TITLE
1. Make a finding that it is in the best interests of the County to suspend the competitive bidding process under Administrative Policy No. 34 for specialized legal services which are unique to Best, Best & Krieger, LLP and are not available from any other legal services provider.
2. Approve and authorize the Chairman to execute Specialized Legal Services Agreement, reengaging the law firm of Best, Best & Krieger, LLP to assist the County in the preparation of the General Plan Review and Zoning Ordinance Update and the associated Environmental Impact Report ($300,000).
REPORT
Approval of the recommended actions would renew the contractual relationship with the law firm Best, Best & Krieger, LLP (BBK), which has been assisting the County in the General Plan Review and Zoning Ordinance Update (GPRZOU) since 2019. The proposed Specialized Legal Services Agreement (Agreement) would replace the original Agreement (19-517) which expired on October 8, 2023. BBK is able to provide a level of specialization and experience with the general plan process which is not available within the County Counsel's Office.
ALTERNATIVE ACTION(S):
Your Board may decline to enter into the recommended Agreement, and the County would lack the specialized legal services provided by BBK.
RETROACTIVE AGREEMENT:
The recommended Agreement is retroactive to October 8, 2023, to cover any services provided following the expiration of the original agreement.
FISCAL IMPACT:
If approved, the proposed Agreement would include the firm’s current hourly rates, but the dollar amount cap will remain at the governed rate in the predecessor contract. BBK now charges $400 per hour for partners, $350 per hour for associates and $185 per hour for paralegals; these new rates would be subject to an inflation adjustment beginning July 1, 2025, at which point County Counsel believes most of the work will have been completed. The inflation adjustment in the proposed Agreement will be adjusted based on to the U.S. Department of Labor’s, All Urban Consumers Index set forth for the San Francisco-Oakland-Hayward area and is capped at a 5% maximum.
County Counsel believes the hourly rate increase to be reasonable, given that the rates were set more than four years ago, and the County has benefited from those lower rates for some time.
The services cumulatively provided by BBK under both the proposed Agreement and its predecessor shall not exceed $300,000 without further amendment of the proposed Agreement by your Board. Of the $300,000 amount, the County has spent less than $90,000 to date.
DISCUSSION:
Your Board approved the original agreement between the County and BBK for GPRZOU-related services on October 8, 2019: County Agreement number 19-517. Since that approval date, BBK has been assisting the County’s effort to ensure that the GPRZOU and the associated environmental impact report comply with applicable laws. BBK is able to provide a level of specialization and experience with the general plan process which is not available within the County Counsel's Office.
As such, BBK is already intimately and uniquely familiar with the existing General Plan, the GPRZOU, and the associated environmental impact report. Bringing a new law firm on at this stage would be costly, as the new firm would need to duplicate services already rendered by BBK.
The original agreement was initially set to expire on October 8, 2022. As allowed by section 5 of the original agreement, County Counsel approved an extension to the term of the Original Agreement for one year, until October 8, 2023. Under the terms of the original agreement, it expired on October 8, 2023, and was not extended.
The County currently lacks an agreement with BBK to provide the unique specialized legal services necessary to assist with the GPRZOU. The proposed Agreement, if approved, would carry forth the terms, conditions, and covenants of the original agreement. The term of the proposed Agreement would last until December 31, 2024, with two automatic one-year extensions.
BBK has requested that the attorney and paralegal hourly rates be increased prospectively (from the date of execution of the Agreement, onwards) to the current rates charged by BBK. For example, partners in the firm would bill $400 per hour, as opposed to the $325 under the original agreement. These new rates would be subject to an inflation adjustment, beginning July 1, 2025, as described above, by which time County Counsel believes much of the work on the project will have been completed. County Counsel believes this rate increase to be reasonable and in line with rates charged by other law firms which specialize in this area. Given that the rates have not changed since 2019, your Board may consider the prospective-only increase appropriate.
County Counsel respectfully recommends your Board approve the proposed Agreement and believes that the preexisting $300,000 cap on expenses will be sufficient for this project, even given the increased hourly rates proposed in the Agreement.
REFERENCE MATERIAL:
BAI #35, October 8, 2019
ATTACHMENTS INCLUDED AND/OR ON FILE:
Agreement for Specialized Legal Services (A-19-517)
Suspension of Competition
On file with Clerk - Agreement with BBK for Specialized Legal Services
CAO ANALYST:
Ahla Yang