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ITEM #8 CITY OF COLTON AGENDA REPORT FOR COUNCIL MEETING OF FEBRUARY 3, 2009 TO: HONORABLE MAYOR AND CITY COUNCIL FROM: Mark Nuaimi, Assistant City Manager SUBJECT: Increase City Manager Professional Services Budget by an amount of $60,000 to Cover Costs Associated with San Bernardino Superior Court Case No. SCVSS 811119 (City of Colton vs. City of Rialto) DATE: January 27, 2009 BACKGROUND: On August 5, 2008, the City Manager received authorization in Closed Session to secure the services of Geralyn Skapik to serve as legal counsel for the City of Colton on a pair of outstanding legal issues with the City of Rialto. Thus, the City Manager executed two Engagement Agreements with the Law Office of Mark J. Skapik, APC (herein "Skapik") for the following items: • San Bernardino Superior Court Case No SCVSS 809613 — City of Rialto vs. City of Colton pertaining to the Agua Mansa Commerce Center EIR ("AMB Development") • San Bernardino Superior Court Case No SCVSS 811119 — City of Colton vs. City of Rialto pertaining to the Super Walmart EIR ("Walmart") DISCUSSION/ANALYSIS: Best, Best, & Krieger (BB&K) provides legal services to the City of Colton. There are circumstances where legal issues arise with another party who also retains BB&K as legal counsel, requiring either a conflict waiver to be executed or outside legal counsel to be secured. The City of Colton and the City of Rialto have a number of outstanding legal issues that have required legal counsel representation. While BB&K has and continues to be the full-time counsel for the City of Colton, there was a brief period where BB&K served Interim City Attorney for the City of Rialto. As the recent challenges arose, it would have been customary for Rialto to execute a conflict waiver, allowing BB&K to represent the City of Colton. Rialto refused to execute a conflict waiver, forcing Colton to secure outside legal counsel. Colton Municipal Code Section 3.08.140 authorizes the city council, in limited circumstances, to award a professional services agreement to a consultant without a formal or informal RFP process. Section 3.08.140(E) provides that competitive bidding, either formal or informal, is not required "When the city manager determines that it is in the best interest of the city and its administrative operations to dispense with public bidding for non-public projects under this chapter." For this contract award, the City Manager has made such a determination based upon the following: • Geralyn Skapik specializes in California Environmental Quality Act (CEQA) litigation;