DATE: January 21, 2020
TO: Board of Supervisors
SUBMITTED BY: Daniel C. Cederborg, County Counsel
SUBJECT: Specialized Legal Services Agreement with Olson Remcho, LLP
RECOMMENDED ACTION(S):
TITLE
1. Approve and authorize County Counsel to execute a retroactive specialized legal services Agreement with Olson Remcho, LLP, to represent the County of Fresno, along with 13 other defendant counties, in BNSF Railway Company v. Alameda County, et al., U.S.D.C. (N.D.), Case No. 19-cv-07230-HSG, effective January 1, 2020 in substantial compliance with the terms of the Agreement; and
2. Approve and authorize the Auditor-Controller/Treasurer-Tax Collector to issue payment to the County of Kern for the County of Fresno's apportioned equal share of legal fees incurred under the specialized legal services Agreement with Olson Remcho, LLP; and
3. Approve and authorize County Counsel to execute the Joint Defense Agreement with 13 defendant counties in BNSF Railway Company v. Alameda County, et al., U.S.D.C. (N.D.), Case No. 19-cv-07230-HSG in substantial compliance with the terms of the Joint Defense Agreement.
REPORT
Approval of the recommended actions will delegate authority to the County Counsel to engage Olson Remcho, LLP to represent the County of Fresno, and 13 other defendant counties in BNSF Railway Company v. Alameda County. The Agreement and Joint Defense Agreement are not yet finalized but key terms of these agreements are not subject to change. However, due to critical deadlines approaching in the underlying litigation, approval of the recommended actions is needed to expedite Fresno County’s ability to engage representation in the above-referenced litigation. This item is countywide.
ALTERNATIVE ACTION(S):
There are no viable alternative actions as these specialized legal services are not available in the County Counsel’s Office.
SUSPENSION OF COMPETITION/SOLE SOURCE CONTRACT:
Under the County’s policies for obtaining services, competitive bidding is not required to select specialized legal counsel. This is a contract for specialized legal services. The law firm selected has specific experience in this type of litigation and such specialized legal services are not available in the County Counsel’s Office.
RETROACTIVE AGREEMENT:
The Agreement is retroactive to January 1, 2020, the date the Attorneys were obligated to provide legal services as negotiated in the Agreement.
FISCAL IMPACT:
There is no increase in Net County Cost associated with the recommend actions. Because a total of 14 counties are equaling sharing the legal costs to be incurred under the Agreement, the County’s share of these costs is estimated not to exceed $100,000 for the term of the Agreement. Sufficient appropriations and estimated revenues for costs associated with this Agreement are included in the FY 2019-20 Interest and Miscellaneous Expenditures Org 2540 Adopted Budget and will be included in future budget requests as needed.
DISCUSSION:
The County of Fresno, along with the counties of Alameda, Contra Costa, Kern, Kings, Madera, Merced, Orange, Plumas, Riverside, San Bernardino, San Joaquin, Stanislaus and Tulare, are named as defendants in BNSF Railway Company v. Alameda County, et al. The County along with these other named defendant counties are all parties to the Agreement and seek a joint defense by Olson Remcho, LLP in this litigation. This litigation involves complex and novel legal theories of relief. Joint representation will be the most efficient use of legal resources and will minimize the expenditure of legal costs by Fresno County in defending this lawsuit.
Under the Agreement, the participating counties have agreed to split the fees and costs for this litigation equally. For administrative ease, the Agreement provides that Olson Remcho, LLP will submit monthly invoices to the Kern County for payment. Kern County will then bill the other participating counties their apportioned equal share for each invoice received. The Fresno County will then remit payment to Kern County for Fresno County’s apportioned equal share for legal fees and costs for each invoice received.
The Agreement and Joint Defense Agreement are not yet finalized. However, the key terms in the agreements are not subject to change. Certain critical deadlines are approaching in the underlying litigation. To expedite Fresno County’s ability to engage Olson Remcho, LLP in the above-referenced litigation, County Counsel seeks authority to execute the finalized Agreement and the Joint Defense Agreement in substantial compliance with the terms of the agreements included in this action.
ATTACHMENTS INCLUDED AND/OR ON FILE:
On file with Clerk - Agreement
On file with Clerk - Joint Defense Agreement
CAO ANALYST:
Yussel Zalapa