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ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: DIANE C. ROTH Subject:Resolutions of the Mayor and Common Council
Sr.AssistantCity Attorney of the City of San Bernardino Authorizing the Execution
of a Professional Services Agreement Between Arias&
Dept: CITY ATTORNEY Lockwood and the City of San Bernardino, and
authorizing and directing the Economic Development
Date: March 17,2011 Agency to bear the cost of the City's defense in the case
of Jaime Alvarez. v. City of San Bernardino to be filed
in San Bernardino Superior Court.
Meeting Date: March 21, 2011
Synopsis of Previous Council Action:
July 16, 2007 Resolution 2007-232 - authorized an Amendment to the Professional Services
Agreement with Joseph Arias to represent the City in the previous cases of Jaime
Alvarez v. City of San Bernardino and Redevelopment Agency v. Jaime Alvarez.
2002 Mayor and Common Council approved the retention of Joseph Arias to represent the City
in the previous case of Redevelopment Agency v.Jaime Alvarez,and directed that attorneys'
fees and costs be borne by the RDA.
2000 Mayor and Common Council approved the retention of Joseph Arias to represent the City
in the previous case of Jaime Alvarez, et al., v. City of San Bernardino,and directed the cost
of defense to be borne by the RDA.
Recommended motion:
That Resolutions A and B be adopted.
1419ignature
Contact person: Diane C. Roth Phone: 5355
Supporting data attached: Staff Report Ward:
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes: �J
Agenda Item No. 9A
Q3-.,71- 2-oi l
STAFF REPORT
Council Meeting Date: March 21, 2011
TO: Mayor and Common Council
FROM: Diane C. Roth, Senior Assistant City Attorney,
DATE: March 17, 2011
AGENDA: Resolutions of the Mayor and Common Council of the City of San Bernardino
Authorizing the Execution of a Professional Services Agreement Between Arias
&Lockwood and the City of San Bernardino,for Legal Services in the Case of
Jaime Alvarez, v. City of San Bernardino, et al.,to be filed in the San Bernardino
Superior Court, and authorizing and directing the Economic Development
Agency to bear the cost of the City's legal defense.
On March 24,2000,Jaime Alvarez, et al., filed a lawsuit in federal court against the City of
San Bernardino, et al., for alleged civil rights violations. Joseph Arias represented the City and its
employees in that case in the trial court. Because the case solely involved the Redevelopment
Agency, Mr. Arias' fees and litigation costs were paid by RDA. The trial court granted summary
judgment to the defendants,and plaintiffs appealed. The City Attorney's Office handled the appeal
in-house, and in February, 2011 the Ninth Circuit Court of Appeals affirmed the trial court. the
plaintiffs state causes of action were not decided in this case.
On March 14,2001, criminal charges were filed against Jaime Alvarez and other plaintiffs.
The charges were dismissed on September 21, 2007, due to the unavailability of witnesses.
On January 18,2002,the Redevelopment Agency filed a lawsuit in state court against Jaime
Alvarez, et al.,which was removed to federal court. All the claims but one were remanded to state
court;the federal court action was stayed pending the outcome of the criminal case. The state action
was continued pending the outcome of the case on Appeal in the Ninth Circuit. These cases have
been,and continue to be,handled by Joseph Arias,of Arias&Lockwood,and have been funded by
RDA.
After receiving the Ninth Circuit court of Appeals' decision, the plaintiffs' informed the
City's counsel that they intend to file a new case in the San Bernardino Superior Court on the state
claims that were not decided in their initial federal action.
Because these case arise solely out of RDA action, the Director of the Economic
Development Agency has agreed to continue funding the City's defense in the new case to be filed.
Because Arias &Lockwood have been handling these cases for eleven years and are most familiar
with the evidence in these complex cases,the City Attorney's Office recommends the retention of
Arias & Lockwood on this new case and further recommends that the EDA be authorized and
directed to fund the litigation.
a
Attached hereto is a Resolution(A)authorizing the Mayor to execute a Professional Services
Agreement providing for the representation, with a ceiling of$25,000.00 on attorneys fees and a
FAROTHUtigarion Cases-Outside Counsel\Alvarez\Arias PSA Staff Report.wpd
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requirement of regular status reports. Also attached is a Resolution(B)of the Mayor and Common
Council and the Community Development Commission authorizing and directing the Economic
Development Agency to bear the costs of the City's defense in the litigation.
It is requested by the City Attorney that the proposed resolutions be adopted.
Recommendation: Adopt Resolutions.
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s FAROTHTitigation Cases-Outside Counsel\Alvarez\Arias PSA Staff Report.wpd
1 RESOLUTION NO. COP 7
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
3 AGREEMENT BETWEEN ARIAS&LOCKWOOD AND THE CITY OF SAN BERNARDINO
FOR LEGAL SERVICES IN THE CASE OF JAIME ALVAREZ, et al. v. CITY OF SAN
4 BERNARDINO, et al., TO BE FILED IN THE SAN BERNARDINO SUPERIOR COURT
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
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SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed
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to execute on behalf of said City a Professional Services Agreement between Arias &Lockwood and
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the City of San Bernardino for legal services in the case of Jaime Alvarez, et al v. City of San
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Bernardino, et al,to be filed in the San Bernardino Superior Court, a copy of which is attached hereto
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marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length.
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SECTION 2. The authorization granted by this Resolution shall expire and be void and
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of no further effect if the agreement is not executed by both parties and returned to the Office of the
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City Clerk within sixty(60) days following the effective date of this Resolution.
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FAROMLitigation Cases-Outside CounseRAlvarez\Arias PSA Reso.wpd
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
2 AGREEMENT BETWEEN ARIAS&LOCKWOOD AND THE CITY OF SAN BERNARDINO
FOR LEGAL SERVICES IN THE CASE OF JAIME ALVAREZ, et al. v. CITY OF SAN
3 BERNARDINO, et al., TO BE FILED IN THE SAN BERNARDINO SUPERIOR COURT
4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
5 Common Council of the City of San Bernardino at a meeting thereof,held on the_day
6 of , 2011,by the following vote, to wit:
7 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
8 MARQUEZ
9 VACANT
10 BRINKER
11 SHORETT
12 KELLEY
13 JOHNSON
14 MC CAMMACK
15
16 Rachel Clark, City Clerk
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The foregoing Resolution is hereby approved this _day of , 2011.
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PATRICK J. MORRIS, Mayor
21 City of San Bernardino
22 Approved as to form:
23 JAMES F. PENMAN,
City Attorney
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25 By --
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FAROTH\Litigation Cases-Outside Counsel\Alvarez\Arias PSA Reso.wpd
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1 PROFESSIONAL SERVICES AGREEMENT
✓ 2 Jaime Alvarez, et al., v. City of San Bernardino et al.
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3 1. The CITY OF SAN BERNARDINO(hereinafter"CITY")and the law firm of ARIAS
4 & LOCKWOOD (hereinafter"A&L") are the parties to this Agreement.
5 2. A&L will represent the following entities and persons in Jaime Alvarez al.
, et v. City
6 of San Bernardino, et al., to be filed in the San Bernardino Superior Court: CITY OF SAN
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7 BERNARDINO and any other designated officer or employee of the CITY who may be named.
8 A&L shall not represent any client in any type of claim against the CITY without prior written
9 approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's Office.
10 3. A&L shall be paid at the hourly rates set forth below:
11 Attorneys - $145.00 per hour; and,
12 Law Clerks/Paralegals - $70.00 per hour.
13 The amounts expended under this agreement for attorney fees shall not exceed
14 $25,000 without further approval of the Mayor and Common Council.
15 4. Bills shall be submitted at least on a monthly basis and no later than the 5th day of
16 each succeeding month.
17 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
18 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
19 A&L may include a single charge in an amount not to exceed four percent (4%) of attorney fees in
20 lieu of reimbursement for photocopying, telephone charges, and postage.
21 6. If attorney fees are charged "portal to portal" (e.g., from office to court and return),
22 then A&L shall not be entitled to reimbursement for mileage and parking fees.
23 7. A&L shall obtain approval from the CITY to retain expert witnesses,consultants,and
24 other professionals (not including court reporters) for purposes of the litigation. A&L may, if it
25 chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on its
26 periodic statement, or it may forward the consultant's bill to the CITY with a request that the CITY
27 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
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FAROTMLitigation Cases-Outside Counselwvarez\Arias PSA.wpd I Exhibit A
I Finance Department.
2 8. Status reports will be submitted to the CITY through the City Attorney's Office
3 whenever any significant event occurs,and in any event at least quarterly. Information sufficient to
4 set reserves,including,without limitation,potential liability exposure and percentage of fault, shall
5 be included. A&L shall comply with all reporting requirements of BICEP, if applicable.
6 9. Copies of all opinions,pleadings,discovery and motions shall be provided to the City
7 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this
8 or other litigation.
9 10. Copies of any correspondence and other documents sent to any of the parties in this
10 action shall also be provided to the CITY through the City Attorney's Office.
11 11. Any and all settlements shall require CITY approval. Request for settlement authority
12 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals.
13 12. In the event the settlement value of this case appears to exceed $50,000.00 the City
14 Attorney's Office shall be notified immediately.
15 13. Only Joseph Arias of ARIAS &LOCKWOOD or another senior attorney approved
16 by the City shall conduct the trial of this case.
17 14. No client development costs are to be included in billings.
18 15. No continuing education expenses are to be included in billings.
19 16. Final billing shall be accompanied by copies of the Request for Dismissal,
20 Satisfaction of Judgment, Release and any other final documents.
21 17. Either party may terminate this Agreement at will. A&L will continue to represent
22 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
23 another attorney.
24 18. A&L is an independent contractor as to the CITY.
25 19. A&L shall maintain the following types of insurance with limits as shown:
26 a) Workers Compensation as required by the laws of the State of California,
27 including Employment Liability with$250,000 limits covering all persons providing
28
FAROMLitigation Cases-Outside CounseAAlvareAArias PSA.wpd 2 Exhibit A
I service on behalf of A&L and all risks to such persons under this Agreement. A&L
2 shall require its Workers Compensation carrier to waive all rights of subrogation
3 against the CITY and its officers and employees and any others for whom services
4 are being provided under this Agreement.
5 b) Comprehensive General and Automobile Liability Insurance coverage to
6 include contractual coverage and automobile coverage for owned, hired and non-
7 owned vehicles. The policy shall have at least a combined single limit of$1,000,000
8 for bodily injury and property damage.
9 c) Professional Liability Insurance with limits of at least$1,000,000 per claim.
10 In lieu of naming the CITY as an additional insured, the policy may be endorsed as
I I follows:
I "Insurance coverage afforded by this policy shall also apply
to the liability assumed by the Insured under the Agreement with the
I CITY OF SAN BERNARDINO for legal services, provided such
liability results from an error, omission or negligent act of the
14 insured, its officers, employees, agents, or subcontractors. All other
IS provisions of this policy are to remain unchanged."
16 A&L shall furnish certificates of insurance and certified copies of all policies and
17 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
18 to the commencement of performance of services hereunder, which certificates shall provide that
19 such insurance shall not be terminated or expire without thirty (30) days written notice to the City
20 Attorney's Office, and shall maintain such insurance from the time A&L commences performance
21 of services hereunder until the completion of such services.
22 All policies, with respect to the insurance coverage above required, except for the
23 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
24 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
25 their employees, agents, volunteers and officers as additional named insureds with respect to
26 liabilities arising out of the performance of services hereunder.
27 All policies required above are to be primary and non-contributing with any insurance
28 policies or self-insurance programs carried or administered by the CITY or other parties represented
FAROTH\Litigation Cases-Outside Counsel\Alvarez\-Arias PSA.wpd 3 Exhibit A
I under this Agreement.
2 20. All communications and billings to the CITY are to be directed as follows:
3 City Attorney's Office
CITY OF SAN BERNARDINO
4 300 North"D" Street
5 San Bernardino, CA 92418
6 Dated: , 2008 ARIAS & LOCKWOOD
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By: Joseph Arias
10
11 Dated: , 2008 CITY OF SAN BERNARDINO
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By: Patrick J. Morris, Mayor
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17 Approved as to form:
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JAMES F. PENMAN,
19 City Attorney
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By:
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FIROMLitigation Cases-Outside CounselWlvarez\Arias PSA.wpd 4 Exhibit A
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I PROFESSIONAL SERVICES AGREEMENT
2 Jaime Alvarez, et al., v. City of San Bernardino, et al.
3 1. The CITY OF SAN BERNARDINO(hereinafter"CITY")and the law firm of ARIAS
4 & LOCKWOOD (hereinafter"A&L") are the parties to this Agreement.
5 2. A&L will represent the following entities and persons in Jaime Alvarez, et al., v. City
6 of San Bernardino, et al., to be filed in the San Bernardino Superior Court: CITY OF SAN
7 BERNARDINO and any other designated officer or employee of the CITY who may be named.
8 A&L shall not represent any client in any type of claim against the CITY without prior written
9 approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's Office.
10 3. A&L shall be paid at the hourly rates set forth below:
11 Attorneys - $145.00 per hour; and,
12 Law Clerks/Paralegals - $70.00 per hour.
13 The amounts expended under this agreement for attorney fees shall not exceed
14 $25,000 without further approval of the Mayor and Common Council.
15 4. Bills shall be submitted at least on a monthly basis and no later than the 5t" day of
16 each succeeding month.
17 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
18 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
19 A&L may include a single charge in an amount not to exceed four percent(4%)of attorney fees in
20 lieu of reimbursement for photocopying, telephone charges, and postage.
21 6. If attorney fees are charged "portal to portal" (e.g., from office to court and return),
22 then A&L shall not be entitled to reimbursement for mileage and parking fees.
23 7. A&L shall obtain approval from the CITY to retain expert witnesses,consultants,and
24 other professionals (not including court reporters) for purposes of the litigation. A&L may, if it
25 chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on its
26 periodic statement, or it may forward the consultant's bill to the CITY with a request that the CITY
27 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
28 Finance Department.
F:\ROTH\Litigation Cases-Outside Counsel\Alvarez\Arias PSA.wpd I
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1 8. Status reports will be submitted to the CITY through the City Attorney's Office
2 whenever any significant event occurs,and in any event at least quarterly. Information sufficient to
3 set reserves, including,without limitation,potential liability exposure and percentage of fault, shall
4 be included. A&L shall comply with all reporting requirements of BICEP, if applicable.
5 9. Copies of all opinions,pleadings,discovery and motions shall be provided to the City
6 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this
7 or other litigation.
8 10. Copies of any correspondence and other documents sent to any of the parties in this
9 action shall also be provided to the CITY through the City Attorney's Office.
10 11. Any and all settlements shall require CITY approval. Request for settlement authority
11 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals.
12 12. In the event the settlement value of this case appears to exceed$50,000.00 the City
13 Attorney's Office shall be notified immediately.
14 13. Only Joseph Arias of ARIAS &LOCKWOOD or another senior attorney approved
15 by the City shall conduct the trial of this case.
16 14. No client development costs are to be included in billings.
17 15. No continuing education expenses are to be included in billings.
18 16. Final billing shall be accompanied by copies of the Request for Dismissal,
19 Satisfaction of Judgment, Release and any other final documents.
20 17. Either party may terminate this Agreement at will. A&L will continue to represent
21 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
22 another attorney.
23 18. A&L is an independent contractor as to the CITY.
24 19. A&L shall maintain the following types of insurance with limits as shown:
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25 a) Workers Compensation as required by the laws of the State of California,
26 including Employment Liability with$250,000 limits covering all persons providing
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27 service on behalf of A&L and all risks to such persons under this Agreement. A&L
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28 shall require its Workers Compensation carrier to waive all rights of subrogation
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j FAROTH\Litigation Cases-Outside CounselWlvarez\Arias PSA.wpd 2
I against the CITY and its officers and employees and any others for whom services
2 are being provided under this Agreement.
g p 1�
3 b) Comprehensive General and Automobile Liability Insurance coverage to
4 include contractual coverage and automobile coverage for owned, hired and non-
5 owned vehicles. The policy shall have at least a combined single limit of$1,000,000
6 for bodily injury and property damage.
7 c) Professional Liability Insurance with limits of at least$1,000,000 per claim.
8 In lieu of naming the CITY as an additional insured, the policy may be endorsed as
9 follows:
10 "Insurance coverage afforded by this policy shall also apply
to the liability assumed by the Insured under the Agreement with the
11 CITY OF SAN BERNARDINO for legal services, provided such
liability results from an error, omission or negligent act of the
12 insured, its officers, employees, agents, or subcontractors. All other
provisions of this policy are to remain unchanged."
13
14 A&L shall furnish certificates of insurance and certified copies of all policies and
15 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
16 to the commencement of performance of services hereunder, which certificates shall provide that
17 such insurance shall not be terminated or expire without thirty(30) days written notice to the City
18 Attorney's Office, and shall maintain such insurance from the time A&L commences performance
of services hereunder until the completion of such services.
19
20 All policies, with respect to the insurance coverage above required, except for the
21 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
22 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
23 their employees, agents, volunteers and officers as additional named insureds with respect to
liabilities arising out of the performance of services hereunder.
24
25 All policies required above are to be primary and non-contributing with any insurance
26 policies or self-insurance programs carried or administered by the CITY or other parties represented
under this Agreement.
27
28 20. All communications and billings to the CITY are to be directed as follows:
FAROTHTitigation Cases-Outside CounseEAlvarez\Arias PSA.wpd 3
1 City Attorney's Office
AVON CITY OF SAN BERNARDINO
2 300 North"D" Street
San Bernardino, CA 92418
3
4 Dated: 12008 ARIAS & LOCKWOOD
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By: Joseph Arias
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9 Dated: 92008 CITY OF SAN BERNARDINO
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By: Patrick J. Morris, Mayor
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15 Approved as to form:
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JAMES F. PENMAN,
17 City Attorney
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By
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F:\ROTH\Litigation Cases-Outside Counsel\Alvarez\Arias PSA.wpd 4
COPY
1 RESOLUTION NO.
2 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BERNARDINO DIRECTING THE ECONOMIC DEVELOPMENT AGENCY
3 TO PAY THE ATTORNEYS'FEES AND LITIGATION COSTS IN THE DEFENSE OF THE
CITY OF SAN BERNARDINO AND ITS CURRENT AND PAST EMPLOYEES IN THE
4 CASE OF JAIME AL VAREZ, et al. v. CITY OF SAN BERNARDINO, et al., TO BE FILED IN
THE SAN BERNARDINO SUPERIOR COURT
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j BE IT RESOLVED BY COMMUNITY DEVELOPMENT COMMISSION OF THE
j 6 CITY OF SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. The Economic Development Agency is hereby authorized and directed to
8 pay the attorneys' fees and litigation costs in the defense of the City of San Bernardino and any named
9 current and past employees in the case of Jaime Alvarez, et al v. City of San Bernardino, et al, to be
10 filed in the San Bernardino Superior Court.
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FAROMLitigation Cases-Outside Counsel\Alvarez\Arias PSA Reso.wpd
1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
SAN BERNARDINO DIRECTING THE ECONOMIC DEVELOPMENT AGENCY TO PAY
2 THE ATTORNEYS'FEES AND LITIGATION COSTS IN THE DEFENSE OF THE CITY OF
SAN BERNARDINO AND ITS CURRENT AND PAST EMPLOYEES IN THE CASE OF
3 JAIME AL VAREZ, et al. v. CITY OF SAN BERNARDINO, et al., TO BE FILED IN THE SAN
BERNARDINO SUPERIOR COURT
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
5
Development Commission of the City of San Bernardino at a meeting thereof, held on
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the_day of , 2011, by the following vote, to wit:
7
Commission Members: Ayes Nays Abstain Absent
8
MARQUEZ
9
VACANT
10
BRINKER
11
SHORETT
12
KELLEY
13
JOHNSON
14
MC CAMMACK
15
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S ecretary
17
18 The foregoing Resolution is hereby approved this _day of , 2011.
19
20
21 Patrick J. Morris, Chairperson
Community Development Commission
22 Of the City of San Bernardino
23 Approved as to form:
24 JAMES F. PENMAN,
City Attorney
25
26 By:
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