Title
County Counsel recommending the Board:
1) Make findings in accordance with Section 3.13.030 (C) of the County Ordinance that due to the temporary or occasional nature of legal services pertaining to the Mitigation Fee Act, the ongoing aggregate of work to be performed is not sufficient to warrant addition of permanent staff; and
2) Approve and authorize the Chair to sign the Fourth Amendment to Agreement 990 (552-S1711) with Abbott & Kindermann, Inc., for Legal Services pertaining to the Mitigation Fee Act, increasing the total compensation amount by $100,000, for a new total not to exceed $400,000.
FUNDING: Risk Fund.
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DISCUSSION / BACKGROUND
The County currently has an agreement for legal services with Abbott & Kindermann, Inc. to provide legal services to the County in the action entitled George Sheetz & Friends of El Dorado County v. County of El Dorado, El Dorado Superior Court case No. PC20170255. The existing agreement has a not to exceed amount of $300,000 and is funded through the Risk Fund. To date, the County has paid approximately $270,000 under this Agreement. Although this case is in its later stages, recent developments have the potential to require additional legal services in an amount beyond the current contract amount. To ensure that the representation and defense of the County can continue, County Counsel is recommending that the Agreement be amended to increase the not-to-exceed amount by $100,000, for a new total of $400,000.
This litigation was originally filed on June 5, 2017. During the past eight years, the case went from the El Dorado County Superior Court (Superior Court) to the Third District Court of Appeal (3rd DCA) to the California Supreme Court (CA SC) (petition for review denied) to the Supreme Court of the United States (SCOTUS). It was then remanded back to the 3rd DCA for further proceedings in accordance with the decision of SCOTUS. In those proceedings, the County prevailed with the 3rd DCA finding that the County’s Traffic Impact Mitigation fees comply with both the Mitigation Fee Act and with the nexus and rough proportionality requirements imposed by SCOTUS. A petition for review has again been filed by petitioner in the CA SC. Briefing is complete on the petition for review by the CA SC. If the CA SC grants the petition for review, further briefing on the merits will be required. If the CA SC denies the petition for review or if it grants review and finds in favor of the County on the merits, there is the potential that the petitioner again files a petition for review by SCOTUS. As a result, and due to the nature and complexity of the issues involved, it is difficult to predict the ultimate cost of the litigation at this time.
Although the County has been involved in this litigation for eight years, the outside counsel costs to date have been relatively modest for two reasons: (1) Abbott & Kindermann has been working at a discounted rate, and (2) A law firm with extensive SCOTUS experience offered to represent the County at no cost during the proceedings before SCOTUS.
ALTERNATIVES
If the amendment is not approved, the County will be left without sufficient resources to continue to defend this matter.
PRIOR BOARD ACTION
Legistar file 17-0721 - June 17, 2017 - Original Agreement with Abbott & Kindermann
Legistar file 18-1049 - July 24, 2018 - Agreement Amendment 1
Legistar file 20-1287 - October 20, 2020 - Agreement Amendment 2
Legistar file 24-1146 - July 16, 2024 - Agreement Amendment 3
OTHER DEPARTMENT / AGENCY INVOLVEMENT
N/A
CAO RECOMMENDATION / COMMENTS
Approve as recommended.
FINANCIAL IMPACT
Funds are available in the Risk Fund to cover the increased costs, with recovery through the Cost Plan. Additionally, there is the potential for the risk management reserves to be reimbursed for legal costs from the mitigation fee funds that are the subject of the litigation.
CLERK OF THE BOARD FOLLOW UP ACTIONS
Obtain the Chair’s signature on the Amendment and return an executed copy to County Counsel
STRATEGIC PLAN COMPONENT
N/A
CONTACT
Kathleen Markham, Sr. Deputy County Counsel