AGENDA STAFF REPORT

Agenda Item AGENDA STAFF REPORT ASR Control 18-000031
MEETING DATE:	02/06/18
legal entity taking action:	Board of Supervisors and Orange County Flood Control District
board of supervisors district(s):	All Districts
SUBMITTING Agency/Department:	County Counsel (Approved)
Department contact person(s):	Leon Page (714) 834-3303
	Rebecca Leeds (714) 834-3906

Subject: Selection of Eminent Domain Litigation and Advisory Counsel

ceo CONCUR

County Counsel Review

Clerk of the Board

Concur

Approved Agreement to Form

Discussion

4/5 Vote

Budgeted: N/A

Current Year Cost: See Financial Impact Section

Annual Cost: See Financial Impact Section

Staffing Impact:

# of Positions:

Sole Source: No

Current Fiscal Year Revenue: N/A

Funding Source: Santa Ana River-Fund 404: 100%	County Audit in last 3 years: No

Prior Board Action: 05/25/2010 #53, 02/26/2008 #34, 10/24/2000 #50

RECOMMENDED ACTION(S):

1.	Acting as the Board of Supervisors and as the governing Board of the Orange County Flood Control District, select the law firm of Murphy & Evertz LLP as one of five firms to provide real property acquisition and eminent domain related advisory and litigation services to assist in the proposed acquisition of real property interests for the remaining portions of the Santa Ana River Mainstem Project, including Santiago Creek and the Prado Dam, as well as other condemnation matters as needed on behalf of Orange County Flood Control District.
2.	Acting as the Board of Supervisors and as the governing Board of the Orange County Flood Control District, select the law firm of Burke, Williams and Sorensen, LLP as one of five firms to provide real property acquisition and eminent domain related advisory and litigation services to assist in the proposed acquisition of real property interests for the remaining portions of the Santa Ana River Mainstem Project, including Santiago Creek and the Prado Dam, as well as other condemnation matters as needed on behalf of Orange County Flood Control District.
3.	Acting as the Board of Supervisors and as the governing Board of the Orange County Flood Control District, select the law firm of Meyers Nave Riback Silver & Wilson, PLC as one of five firms to provide real property acquisition and eminent domain related advisory and litigation services to assist in the proposed acquisition of real property interests for the remaining portions of the Santa Ana River Mainstem Project, including Santiago Creek and the Prado Dam, as well as other condemnation matters as needed on behalf of Orange County Flood Control District.
4.	Acting as the Board of Supervisors and as the governing Board of the Orange County Flood Control District, select the law firm of Price, Postel & Parma LLP, as one of five firms to provide real property acquisition and eminent domain related advisory and litigation services to assist in the proposed acquisition of real property interests for the remaining portions of the Santa Ana River Mainstem Project, including Santiago Creek and the Prado Dam, as well as other condemnation matters as needed on behalf of Orange County Flood Control District.
5.	Acting as the Board of Supervisors and as the governing Board of the Orange County Flood Control District, select the law firm of Bergman Dacey Goldsmith, PLC as one of five firms to provide real property acquisition and eminent domain related advisory and litigation services to assist in the proposed acquisition of real property interests for the remaining portions of the Santa Ana River Mainstem Project, including Santiago Creek and the Prado Dam, as well as other condemnation matters as needed on behalf of Orange County Flood Control District.
6.	Authorize County Counsel to execute the standard Agreement for Legal Services with each of the selected firms.

SUMMARY:

Selection of the law firms of Murphy & Evertz LLP; Burke, Williams and Sorenson, LLP; Meyers Nave Riback Silver & Wilson, PLC; Price, Postel & Parma LLP; and Bergman Dacey Goldsmith, PLC with expertise in eminent domain will assist the Orange County Flood Control District in real property acquisition and representation in litigation for the proposed acquisition of real property interests for the remaining portions of the Santa Ana River Mainstem Project, including Santiago Creek and the Prado Dam, as well as other condemnation matters on an as-needed basis.

BACKGROUND INFORMATION:

On October 24, 2000, and again on February 26, 2008, your Board approved agreements with multiple law firms—Best Best & Krieger, Watson Richards & Gershon, Oliver Vose Sandifer Murphy and Lee, Luce Forward Hamilton & Scripps, LLP and the California Eminent Domain Law Group—to provide legal advice and representation in litigation for the Santa Ana River Mainstem Project and Proposed Prado Dam Project. On May 25, 2010, your Board approved an agreement with the law firm of Murphy & Evertz LLP (Murphy & Evertz) whose key eminent domain specialists had previously practiced with the selected firm of Luce, Forward, Hamilton & Scripps, LLP, before leaving to form a new firm. At present, due to various circumstances including the withdrawal from representation of various law firms due to conflicts, as well as the passage of time, Orange County Flood Control District (OCFCD) was left with two law firms available for its use for eminent domain legal services—Murphy & Evertz and California Eminent Domain Law Group. Given that the previous Request for Statements of Qualifications (RFQ) was issued more than 10 years ago, in September of 2007, and in light of the number of possible acquisitions remaining for the Santa Ana River Mainstem Project (Project) (estimated to involve potentially more than 150 property owners), along with the complexity of the possible remaining acquisitions and the potential for development of conflicts of interests, County Counsel recommends that the Board consider authorizing the execution of a Legal Services Agreement with five firms authorized to provide eminent domain legal services with County Counsel’s oversight.

In September 2017, County Counsel issued a new RFQ (Solicitation No. F025-C004544) that was sent to law firms with expertise in eminent domain litigation and real property acquisitions, including current counsel. A copy of the RFQ is attached as Attachment A. The RFQ was also advertised on BidSync. Statements of Qualifications were received from 12 law firms, and were subsequently reviewed by a five-member panel consisting of representatives from CEO-Real Estate Services, Public Works, and two attorneys from the office of County Counsel. The panel decided to interview nine of those firms. Each firm was offered time to make a presentation and was asked the same series of predetermined questions. Based upon a compilation of the panelists’ individual evaluations and scores (as to both written submissions and interviews), the review panel unanimously voted to recommend the top five highest-scoring firms to provide eminent domain legal services, with a single exception. While the firm of Nossaman LLP ranked fourth in terms of scoring, the firm is not recommended because it had numerous substantive objections to the County’s standard Legal Services Agreement that could not be resolved through negotiation. Accordingly, County Counsel has excluded Nossaman and instead included the sixth highest scoring firm, Bergman Dacey Goldsmith, PLC (Bergman Dacey Goldsmith) in its recommendation to the Board.

All of the firms interviewed were highly qualified, though Murphy & Evertz, one of the two firms currently used by the OCFCD for eminent domain matters, was the clear highest scoring bidder. Burke, Williams and Sorenson, LLP (Burke Williams) and Meyers Nave Riback Silver & Wilson, PLC (Meyers Nave) are both firms well known to the County and to the practice of public agency law in general, while Price, Postel & Parma LLP (Price, Postel & Parma) and Bergman Dacey Goldsmith offer highly competent services at competitive rates. The five recommended firms, therefore, will provide the OCFCD with alternatives depending upon the size and complexity of a particular acquisition. The five firms’ rates are reflected in the chart below, while the summary scores for the firms that responded to the OCFCD RFQ and that were interviewed are shown on Attachment B.

Firm

Supervising Attorney

Partner

Senior Associate

Associate

Paralegal

Murphy & Evertz

$395

$340

$320

$180

Burke Williams

$325

$300-$325

$275

$260

$150

Meyers Nave

$375

$350

$300

$250-$275

$150

Price Postel & Parma

$350

$335

N/A

$275

$170

Bergman Dacey Goldsmith

$300

$225

$115

The recommended firms have performed conflict checks and believe they have no current representations that constitute a conflict with representing the OCFCD. Murphy & Evertz, Burke Williams and Meyers Nave have previous experience representing the County of Orange and/or OCFCD and their services have proven satisfactory. County Counsel staff have conducted due diligence as to Price Postel & Parma and Bergman Dacey Goldsmith. As to Price Postel & Parma, reference checks were satisfactory and completed with San Luis Obispo County Counsel, the State of California Department of Water Resources, and the Calleguas Municipal Water District regarding similar projects. As to Bergman Dacey Goldsmith, reference checks were also satisfactory and completed with the Los Angeles Office of County Counsel and the Los Angeles County Metropolitan Transit Authority regarding similar projects.

Murphy & Evertz was formed in 2010 and is comprised of seven attorneys who focus on eminent domain, condemnation, inverse condemnation and other complex real estate trials. The firm is located in Costa Mesa. OCFCD has previously used Murphy & Evertz to provide legal services (and the firm currently represents OCFCD in pending litigation) and found that they provide excellent representation. Prior to 2010, partners John C. Murphy and Douglas J. Evertz headed up two of the largest, most accomplished “big firm” eminent domain and land use litigation groups in the state. The resumes of the attorneys who are proposed to primarily provide legal services are set forth on Attachment C.

Burke Williams, was founded in 1927 and focuses on public law, serving the legal needs of over 200 local government entities, including cities, counties, joint powers authorities, special districts and school districts. The firm has multiple offices in cities throughout California, and will primarily be providing services from its Los Angeles office. The firm has previously provided legal services to the County in several areas, including preparation of front-end procurement and related construction documents for the $170 million John A Musick jail facility, and in 2008 regarding land use and redevelopment matters. Alan A. Sozio, the proposed project manager, is co-author of the seminal practice guide “Eminent Domain: A Step-by-Step Guide to the Acquisition of Real Property” released by Solano Press in 2015. The resumes of the attorneys who are proposed to primarily provide legal services are set forth on Attachment D.

Meyers Nave has an Eminent Domain & Inverse Condemnation Practice Group that has been focused on representing public entities in all facets of the eminent domain process for over 30 years. David Skinner will serve as the lead attorney and he is based in the firm’s San Diego office. The resumes of the three attorneys who are proposed to primarily provide legal services are set forth on Attachment E.

Price Postel & Parma, is a Santa Barbara-based firm that was originally established in 1852. The firm currently has 13 partners and eight associates and “of counsels.” The primary attorney, Todd A. Amspoker, has specialized in eminent domain, inverse condemnation and public agency real estate acquisitions for 30 years, and takes a “hands on” approach to his engagement. The resumes of the other key personnel are set forth on Attachment F.

Bergman Dacey Goldsmith was founded in 1983 as Bergman & Wedner, Inc., became known as Bergman & Dacey, Inc. from 2001 through 2012, and then became Bergman Dacey Goldsmith, PLC in 2012. The firm is a professional law corporation that employs 15 attorneys, with offices in Los Angeles and Irvine. Lead attorney Gregory M. Bergman has a demonstrated track record of success in representing public sector agencies in eminent domain matters. The resumes of Mr. Bergman and other key personnel are set forth on Attachment G.

Except for Bergman Dacey Goldsmith, none of the recommended firms have taken exception to the standard Legal Services Agreement. See Proposed Legal Services Agreement (Standard) and Contract Summary Forms, attached as Attachments H, J, K, L, and M, respectively. The attached proposed Agreement with Bergman Dacey Goldsmith has been reviewed by CEO/Risk Management and the negotiated slight deviations related to indemnification and insurance have been approved. See Proposed Legal Services Agreement with Bergman Dacey Goldsmith and Risk Assessment Form for Bergman Dacey Goldsmith, attached as Attachment I and O, respectively.

For the reasons discussed above, County Counsel recommends that the law firms of Murphy & Evertz; Burke Williams; Meyers Nave; Price, Postel & Parma; and Bergman Dacey Goldsmith be awarded contracts for eminent domain and real property acquisition advice and representation in litigation, and that the County Counsel or designee be authorized to execute agreements for legal services substantially in the form set forth on Attachment H.

FINANCIAL IMPACT:

The Appropriations for these Agreements are included in the FY 2017-18 Modified Budget and will be included in the budgeting process for future years. Legal services will be provided on an as-needed basis. The County Counsel anticipates that the services will vary from year to year in OC Public Works Fund 404, Santa Ana River for services provided by Eminent Domain Litigation and Advisory Counsel.

STAFFING IMPACT:

N/A

ATTACHMENT(S):

Attachment A-Request for Qualifications
Attachment B-Scoring of Responses and Interviews
Attachment C-Resumes of Attorneys from Murphy & Evertz LLP
Attachment D-Resumes of Attorneys from Burke, Williams & Sorensen, LLP
Attachment E-Resumes of Attorneys from Meyers Nave Riback Silver & Wilson
Attachment F-Resumes of Attorneys from Price Postel & Parma, LLP
Attachment G-Resumes of Attorneys from Bergman Dacey Goldsmith
Attachment H-Proposed Legal Services Agreement (Standard)
Attachment I-Proposed Legal Services Agreement with Bergman Dacey Goldsmith
Attachment J-Contract Summary Form for Murphy & Evertz LLP
Attachment K-Contract Summary Form for Burke, Williams & Sorensen, LLP
Attachment L-Contract Summary Form for Meyers Nave Riback Silver & Wilson
Attachment M-Contract Summary Form for Price Postel & Parma, LLP
Attachment N-Contract Summary Form for Bergman Dacey Goldsmith
Attachment O-Risk Assessment Form for Bergman Dacey Goldsmith