REPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS
OF THE COUNTY OF SAN BERNARDINO
AND RECORD OF ACTION
March 10, 2020
FROM
MICHELLE D. BLAKEMORE, County Counsel, County Counsel
SUBJECT
Title v
Increase Purchase Order with Kaplan Kirsch & Rockwell LLP for Specialized Legal Services
End
RECOMMENDATION(S)
Recommendation
1. Authorize the Purchasing Agent to increase Purchase Order No. 4100110743 with Kaplan Kirsch & Rockwell LLP by $200,000, from $200,000 to $400,000, in order to continue with the legal representation of the County providing specialized legal services, including experts, related to the Chino Airport Groundwater Remediation Project located generally in the City of Chino at the County’s Chino Airport in response to the Cleanup and Abatement Order No. R8-2017-0011 (Four votes required).
2. Authorize the Auditor-Controller/Treasurer/Tax Collector to post the necessary budget adjustments for 2019-20, as detailed in the Financial Impact section. (Four votes required).
(Presenter: Michelle D. Blakemore, County Counsel, 387-5455)
Body
COUNTY AND CHIEF EXECUTIVE OFFICER GOALS & OBJECTIVES
Operate in a Fiscally-Responsible and Business-Like Manner.
FINANCIAL IMPACT
Approval of this item will not result in the use of additional Discretionary General Funding (Net County Cost). The $200,000 increase to Purchase Order No. 4100110743 will be funded by the Litigation Expenses Reserve in 2019-20, and will be included in future recommended budgets as needed. The following budget adjustments are requested:
|
Fund/Cost Center |
Commitment Item/GL Account |
Description |
Action |
Amount |
|
1340001000 |
52002449 |
Litigation Expenses |
Increase |
$200,000 |
|
1000 |
37008520 |
Reserve Use |
Decrease |
$200,000 |
BACKGROUND INFORMATION
Since May of 2010, outside counsel, including Kaplan, in coordination with the Office of County Counsel, has provided the necessary specialized legal advice and assistance to the County regarding groundwater contamination investigation and remediation near the County’s Chino Airport. The history of state agency-required investigation is as follows: On October 31, 1990, the Regional Water Quality Board-Santa Ana Region (Water Board) issued Clean-up and Abatement Order No. 90-134, to the County for suspected contamination of groundwater beneath and near the Chino Airport. The groundwater is suspected to have been contaminated due to past usage of Volatile Organic Compounds (VOCs) by prior occupants of the Chino Airport property located at 7000 Merrill Avenue, Chino. The County undertook some activities to comply with this order, including some soil investigation and property clean-up.
In June 2008, the Water Board issued Clean-up and Abatement Order No. R8-2008-0064, to supersede its prior order. Clean-up and Abatement Order No. R8-2008-0064 required the County to conduct additional soil and groundwater investigations, and develop remedial action plans for containment and mitigation of VOCs in groundwater downgradient of the Chino Airport. The County has complied with this order.
On January 11, 2017, the Water Board issued Cleanup and Abatement Order No. R8-2017-0011, which superseded the previous order issued in 2008, and which continued the requirements for the County to complete the groundwater investigation and added a new reporting requirement. During this time period, the County prepared a Feasibility Study in order to identify and evaluate options to properly mitigate environmental impacts from past operations and historic activities at the Chino Airport. The Final Feasibility Study, dated May 2017, recommended (1) a groundwater pump-and-treat system be put in place to provide hydraulic containment of groundwater contamination utilizing groundwater extraction wells both onsite and offsite of the Chino Airport and (2) an extensive groundwater monitoring program be put in place to monitor progress of the treatment system. Based upon the Final Feasibility Study, a Remedial Action Plan (RAP) was prepared by the County proposing implementation of the pump-and-treat system. The RAP was reviewed by the Water Board and redesignated as an Interim RAP (IRAP). On January 29, 2019 (Item No. 24) the Board of Supervisors (Board) approved the IRAP and related CEQA documents. The IRAP is currently awaiting approval by the Water Board.
The specialized legal services provided by Kaplan include advising on legal issues among the County, the Chino Basin Watermaster, and the Chino Basin Desalter Authority related to the groundwater clean-up plan in the adjudicated basin. Kaplan, and its expert, are assisting the County as it is continuing to investigate the availability of cost recovery against prior occupants and tenants at the Chino Airport (Potentially Responsible Parties) who may be responsible for a portion of the cost of the remedial activities. Kaplan, and its experts, have been instrumental in identifying and determining the extent of liability of the Potentially Responsible Parties, and their continued assistance is necessary to proceed with pursuing available cost recovery options. Approval of this item will allow the County to continue to utilize Kaplan for continued legal and expert witness services for a total amount not to exceed $400,000.
PROCUREMENT
On May 31, 2010, pursuant to County Code section 12.1908, County Counsel retained the firm of Gallagher & Gallagher for specialized legal services related to the Plume (Purchase Order No. N1126). The Gallagher & Gallagher firm was selected by County Counsel as a non-competitive provider of specialized legal environmental services necessary in resolving claims against the County in connection with the groundwater contamination at and near the Chino Airport.
On April 19, 2011 (Item No. 24), the Board approved Agreement No. 11-230 with Gallagher & Gallagher in an amount not to exceed $125,000, to provide legal services. On September 24, 2013 (Item No. 25), the County approved Agreement No. 11-230 A-1 to reflect the firm’s new name, The Gallagher Law Group PC. In February 2018, a new Purchase Order was issued in the amount of $100,000 with The Gallagher Law Group. To date, The Gallagher Law Group has invoiced the County $67,973.20 for legal services associated with this purchase order.
Since 2010, Thomas A. Bloomfield has been the primary attorney assigned to the Chino Airport groundwater contamination matter. In early 2019, Mr. Bloomfield moved from The Gallagher Law Group to Kaplan. Based on Mr. Bloomfield’s experience and expertise, in February 2019, County Counsel requested and received purchase order number 4100077225 for $50,000 with Kaplan. This purchase order was subsequently increased by $25,000 in May 2019 in anticipation of additional expenses related to Kaplan retaining a groundwater expert. This purchase order was fully utilized as of October 2019. In September 2019, County Counsel requested and received purchase order number 4100110743 for $200,000. To date, Kaplan has invoiced the County $82,154.30 for legal and expert services associated with this purchase order. Anticipated invoices are estimated to reach over $110,000 through February 2020, nearing exhaustion of the initial $200,000. Therefore County Counsel recommends that the Board approve an increase to the purchase order in an amount not to exceed $200,000 to continue receiving these necessary legal and expert services.
Pursuant to Title 1, Division 2, Chapter 19, Section 12.1908 of the County Code, County Counsel is authorized to select and retain through a purchase order, specialized counsel for a particular matter not to exceed $200,000 per fiscal year. Contracts for services in excess of that amount require Board of Supervisors’ approval.
REVIEW BY OTHERS
This item has been reviewed by County Counsel (Kristina Robb, Deputy County Counsel, 387-5455) on February 5, 2020; Purchasing (Michael Candelaria, Lead Buyer, 387-0321) on March 2, 2020; Auditor-Controller/Treasurer/Tax Collector (Erika Gomez, General Accounting, 382-3191) on February 27, 2020; Finance (Carl Lofton, Administrative Analyst, 387-5404) on March 2, 2020 and County Finance and Administration (Robert Saldana, Deputy Executive Officer, 387-5423) on March 2, 2020.