PROPOSAL:
Appropriate Funds from Designation for Litigation and Enforcement and
Authorize Contracts to Expend Such Funds
SYNOPSIS:
This item is to 1) appropriate funds from the Designation for
Litigation and Enforcement in the amount of $1.428 million; and 2)
authorize the Executive Officer to amend existing contracts with Jones Day
LLC or enter into contracts with equally qualified firms to expend such
funds to assist AQMD in defending the railroad rules.
COMMITTEE:
Not Applicable
RECOMMENDED ACTION:
- Appropriate $1.428 million from the Designation for Litigation and
Enforcement to the District Counsel’s FY 2006-07 Budget, Professional and
Special Services account.
- Authorize the Executive Officer to amend existing contracts with Jones
Day or enter into contracts with equally qualified firms as determined in
consultation with the Board Chairman and Vice Chairman to expend these
funds and to execute contracts or amend contracts in the future with
specialized legal firms and expert witness services with monies to be
appropriated as the need arises.
Barry R. Wallerstein, D.Env.
Executive Officer
Background
In the FY 2006-07 Budget, the Board created a $3 Million Designation for
Litigation and Enforcement designed to cover outside counsel expenses for
this fiscal year. In the FY 2006-07 Budget, the District Counsel’s Office
was allocated $250,000 for Professional and Special Services for outside
counsel/litigation expenses. The railroad litigation will require
additional assistance beyond that currently available to AQMD. The railroad
litigation will place a heavy emphasis on development of facts during trial
preparation and at trial. The railroads have hired two large, well-known
firms to represent them in the litigation. To keep up with the litigation,
the AQMD has contracted the assistance of Jones Day, a firm with significant
resources and special expertise in trial and trial preparation work. Also,
the AQMD will need to work with various experts to ensure the best possible
defense.
Proposal
In order to defend this litigation, it is necessary to appropriate
additional funds for expenditure by outside counsel. The railroad case will
require an additional $1.428 million be appropriated to Jones Day to handle
this phase of the lawsuit, which is scheduled to begin trial on November 14,
2006. District Counsel will continue to provide monthly reports on the
litigation at closed session, including expenditures to date. These funds
are essential to adequately defend the AQMD’s interests in this major
lawsuit.
Sole Source Justification
AQMD's Procurement Policy, Section VIII B2, provides for a waiver of
formal bid processes under certain circumstances based upon documentation
justifying a sole-source award. The award to Jones Day is justified
pursuant to Procurement Policy Section VIII B2(d), other circumstances exist
justifying a sole-source award, subdivision (4), level-of-effort expert
consultation services, in view of the need for immediate significant work
involving special expertise in major and complex litigation. The firm's
blended hourly rate is commensurate with the level of expertise and
consistent with past Board-approved expenditures.
Resource Impacts
Sufficient funds are available in the Designation for Litigation and
Enforcement.
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