HomeMy WebLinkAboutSTEVE A. FILARSKYSURANCE NOT ON FILE
VORK MAY ITT PROCEED
co CLERK OF COUNCIL
CZ) DATE:
LEGAL SERVICES AGREEMENT WITH
STEVE A. FILARSKY
N-2021-170
This AGREEMENT made and entered into this 1st day of September, 2021, by
and between STEVE A FILARSKY ("Attorney"), and the City of Santa Ana, a charter city
and municipal corporation duly organized and existing under the constitution and laws of the
State of California ("City").
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o RECITALS
A. The City of Santa Ana and the City Attorney's Office City desires to employ Attorney to
assist the in-house Attorneys for the City ("City Attorney") in the provision of legal services
to the City, for personnel, labor and employment related matters by a firm with specialized
expertise.
B. Attorney represents that he is licensed to practice law in the State of California, has special
experience and knowledge related to representing public entities and their employees at
administrative hearings and in litigation regarding employment matters and desires to
undertake said services.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to
the terms and conditions hereinafter set forth, the parties agree as follows:
1. RETENTION OF ATTORNEY On an as -needed basis, and at the sole discretion of the City,
City hereby agrees to and does retain Attorney, for the compensation hereinafter specified, to assist
the City Attorney with representing the City and/or its employees or officials in litigation and/or
administrative hearings and to provide general advice and legal review when urgent matters arise
in relation to personnel, labor and employment matters. Attorney accepts said retention and agree
to perform, in a timely and efficient manner, all such services as may be requested by the City
Attorney. Attorney shall confirm his acceptance of work requested by City in writing by e-mail or
letter.
2. COMPENSATION FOR SERVICES RENDERED
a. City agrees to compensate Attorney, and Attorney agrees to accept from City, as and
for payment in full for all services at the rate of $330 an hour. Time will be billed in 1/10th of an
hour increments.
b. The total sum to be expended under this Agreement, shall not exceed $50,000,
including any extension periods. Compensation includes any outstanding invoices for work done
under the previous Agreement (N-2018-166) between the Parties and any work done since August 6,
2021.
C. City agrees to reimburse Attorney for out-of-pocket expenses, including but not
limited to, mileage, copying costs, service of process, and mail services authorized by the City
Attorney in connection with the performance of duties under this Agreement. In-house printing,
copying, and reproduction charges will be reimbursed at the rate of 20 cents per page. The City will
not reimburse Attorney for Lexis, Westlaw or other paid legal research subscription services unless
the issue(s) researched relates to a complex legal matter or assignment that is approved in writing
by the City. Automobile travel will be reimbursed at the standard mileage rate in effect at the time
of billing by the Internal Revenue Service. Any costs in excess of $5,000 require City Attorney
approval prior to incurring the expense. All expenses must have supporting documentation submitted
with the invoice.
3. METHOD OF PAYMENT Attorney shall submit a monthly statement specifying the
services performed, dates and number of hours, and an itemization of expenses related thereto with
supporting documentation (i.e. receipts, invoices, copy of check, etc.). City acknowledges that the
fees incurred for work performed by Attorney on its behalf are due and owing within 30 days of
the work being performed. At Attorney's discretion, he may choose to defer payment.
Notwithstanding this, City agrees that it shall tender payment within 30 days of written demand
by Attorney for payment. Unless expressly stated thereon, monthly statements generated by
Attorney shall not constitute written demand, but shall simply be a written reflection of work
performed and fees incurred.
4. CONTROL OF LEGAL MATTERS Attorney agrees that each and every matter or
proceeding in which they undertake to assist the City Attorney, as aforesaid, shall be and remain
under, and subject to the control and direction of said City Attorney at all stages, and that they shall
at all times keep the City Attorney informed of all matters pertaining thereto. City will keep Attorney
informed of all significant developments in matters relating to any representation undertaken by
Attorney. Attorney further agree, if and when their retention hereunder is terminated by City, as
hereinafter specified, they shall return to City Attorney any and all files then in their possession
concerning each and every matter or proceeding in which they represented the City pursuant to this
Agreement.
5. REPORTING REQUIREMENTS Attorney agrees to keep the City Attorney, and any other
person(s) designated by the City Attorney, informed of significant events in the Actions, including
but not limited to trial date, filing of motions for summary judgment, hearing date for motion for
summary judgment, settlement conference date, and mediation date. Attorney also agree to provide
the following reports:
a. 45 day initial evaluation of case and budget;
b. Periodic status updates re important depositions, expert witness designation, expert
witness depositions, pertinent discovery issues; and
C. Pre-trial report 90 days before trial or 30 days before an administrative hearing.
6. TERM The term of this Agreement shall continence on the date first written above for a one
(1) year term, unless terminated earlier pursuant to Section 15 below. The term of this Agreement
may be extended for up to one (1) year upon a writing executed by both parties, including the City
Manager and the City Attorney.
7. INDEPENDENT CONTRACTORS It is mutually agreed by and between the parties that,
in the performance of their covenants hereunder, Attorney are and shall be independent contractors,
and not officers or employees of City.
8. INSURANCE Attorney shall provide to the City proof of insurance coverage prior to
undertaking performance of work under this Agreement. Attorney shall maintain and shall
require its subcontractors, if any, to obtain and maintain insurance as described below:
a. Professional Liability (errors and omissions) insurance: with a combined single
limit of not less than $1,000,000 per claim, and maintain such insurance throughout
the term of this Agreement.
b. If Attorney maintains broader coverage and/or higher limits than the minimums
shown above, the City requires and shall be entitled to the broader coverage and/or
the higher limits maintained by Attorney. Any available insurance proceeds in
excess of the specified minimum limits of insurance and coverage shall be available
to the City.
C. Notice of Cancellation- Certificate of hisurance shall provide thirty (30) day prior
written notice of cancellation in a form approved by the City.
d. If Attorney fails or refuses to produce and maintain the insurance required by this
section, or fail or refuse to furnish the City with required proof that insurance has
been procured and is in force and paid for, the City shall have the right, at the City's
election, to forthwith terminate this Agreement. Such termination shall not affect
Attorney's right to be paid for its time and materials expended prior to notification
of termination.
9. INDEMNIFICATION Attorney agrees to and shall indemnify and hold harmless the City,
its officers, agents, employees, and representatives from liability for personal injury, damages,
restitution, judicial or equitable relief to the extent caused by Attorney's negligent or wrongful
performance or conduct related to this Agreement.
10. CONFIDENTIALITY All information and documents shared with Attorney as well as all
work performed by Attorney in connection with this Agreement should be treated as strictly
confidential. Moreover, all communications between Attorney and City shall be treated as
protected by the attorney -client privilege and the attorney work product doctrine. Accordingly,
information received by Attorney from City should be kept in a secure place, and no information
about this work may be disclosed to any third party without City's prior written approval. Attorney
shall provide materials directly to the City Attorney, Sonia Carvalho, or selected members of her
office, as directed by the City Attorney. All such information and any written product in
connection with Attorney` retention under this Agreement, shall be marked as "PRIVILEGED
AND CONFIDENTIAL / ATTORNEY -WORK PRODUCT" and shall be the property of the City
Attorney's Office, and shall be returned/provided to the Office of the City Attorney with all copies
upon the request of the City Attorney. Confidential information disclosed to either party by any
subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations
of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in
publicly available sources; (b) is, through no fault of the Attorney, disclosed in a publicly available
source; (c) is in rightful possession of the Attorney without an obligation of confidentiality; (d) is
required to be disclosed by operation of law; or (e) is independently developed by the Attorney
without reference to information disclosed by the City.
11. CONFLICT OF INTEREST CLAUSE Attorney covenant that it presently has no interests
and shall not have interests, direct or indirect, that would conflict in any manner with performance
of services specified under this Agreement.
12. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this
Agreement shall be in writing and shall be deemed to be properly given if delivered in person or
mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic
communication in the manner provided in this Section, to the following persons:
To City: Cleric of the Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, California 92702-1988
Facsimile (714) 647-6956
Courtesy Copy: City Attorney
City of Santa Ana
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702
Facsimile (714) 647-6515
To Attorney: Steve A. Filarsky, Esq.
1441 191' Street
Manhattan Beach, California 90266
Facsimile (310) 545- 2999
A party may change its address by giving notice in writing to the other party. Thereafter, any
notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the
new address. If sent by mail, communication shall be effective or deemed to have been given three
(3) days after it has been deposited in the United States mail, duly registered or certified, with
postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective
or deemed to have been given twenty-four (24) hours after the time set forth on the transmission
report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of
calculating these time frames, weekends, federal, state, County or City holidays shall be excluded.
13. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and
exclusive statement between the City and Attorney, and supersedes any and all other agreements,
oral or written, between the parties. In the event of a conflict between the terms of this Agreement
and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not
be modified except by written instrument signed by the City and by an authorized representative
of Attorney. The parties agree that any terms or conditions of any purchase order or other
instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not
bind or obligate Attorney or the City. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any parties, which are not embodied herein.
14. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services
of Attorney, Attorney may not assign, transfer, delegate, or subcontract any interest herein without
the prior written consent of the City and any such assignment, transfer, delegation or subcontract
without the City's prior written consent shall be considered null and void. Nothing in this
Agreement shall be construed to limit the City's ability to have any of the services, which are the
subject of this Agreement performed by City personnel or by other Attorney retained by City.
15. TERMINATION This Agreement may be terminated by City at any time. In such event,
Attorney shall be entitled to receive and the City shall pay Attorney compensation for all services
performed by Attorney prior to receipt of such notice of termination. As a condition of such payment,
Attorney shall deliver to the City all files and records generated under this Agreement as of such date.
Attorney may terminate this agreement, subject to his obligation to provide written reasonable notice
of at least thirty (30) days to arrange alternative representation. In such case, City agrees to secure
new counsel as quickly as possible and to cooperate fully in the substitution of the new counsel as
counsel of record in in the Actions.
16. NON-DISCRIMINATION Attorney shall not discriminate because of race, color, creed,
religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical
conditions, genetic information, or military and veteran status, age, national origin, ancestry, or
disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching,
training, utilization, promotion, termination or other employment related activities or any services
provided under this Agreement. Attorney affirms that he is an equal opportunity employer and
shall comply with all applicable federal, state and local laws and regulations.
17. JURISDICTION — VENUE This Agreement has been executed and delivered in the State
of California and the validity, interpretation, performance, and enforcement of any of the clauses
of this Agreement shall be determined and governed by the laws of the State of California. Both
parties further agree that Orange County, California, shall be the venue for any action or
proceeding that may be brought or arise out of, in connection with or by reason of this Agreement.
18. MISCELLANEOUS PROVISIONS Each undersigned represents and warrants that its
signature herein below has the power, authority and right to bind their respective parties to each of
the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's
fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held
by the signatory or is withdrawn.
19. COUNTERPARTS; SIGNATURES This Agreement may be executed in counterparts,
secured via facsimile transmission or otherwise, each of which shall be deemed to be an original.
N-2021-170
Photocopies of any executed counterpart shall have the same force and effect as an original. City
further acknowledges that it has read and received a copy the full text Section 6148 of the
California Business and Professions Code prior to signing this Agreement.
20. NO GUARANTEES City understands and acknowledges that there are certain risks and
uncertainties in the pursuit of any matter for which Attorney has been retained, that law is not an
exact science, that Attorney has made no representations or guarantees of success regarding the
conclusion of any particular matter, and that all expressions relative thereto are matters of
Attorney's opinion only. In other words, Attorney makes no representations or guarantees of
success regarding any matter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first
above written.
ATTEST: CITY OF SANTA ANA
aisy Gomez Kristine
erk of the Council City Manager
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By: Si Wa 0- A Re�oi,n:c
Laura A. Rossini
Chief Assistant City Attorney
ATTORNEY
By.
Ste"Filarsky
Agreement N-2021-170
Francine R. Digitally signed by Francine R.
Villareal
m Villareal Date: 2021.12.0308:10:08-08'00'
' N S J I1 A N G ._ i„' CJ Al i' fie Pq'Y
CERTIFICATE OF INSURANCE
This is to certify that the Professional Liability policy designated below has been issued to the insured attorney
or attorney firm named below and is in force at this time. Should the described policy be canceled before the
expiration date thereof, the issuing company mail 3o days written notice to the below named certification
holder, but failure to mail such notice shall impose no obligation or liability of any kind upon the company.
1. Certificate holder:
2. Name and address of Insured:
Steve A. Filarsky
Attorney at Law
144119th Street
Manhattan Beach, CA 90266
4. Limits of Liability
5. Policy Number
6. Policy Period
Lawyers
$ 1,000,000 each claim
020853-ST-ol8
05-01-21 to 05-01-22
Professional
$ 3,0oo,0oo aggregate
Liability
$ 5,000 deductible
*Policy is effective and expires at 12:ol a.m., standard time at the address of the named insured as
stated herein.
This is a "Claims -Made" policy. The coverage afforded by this policy is limited to Claims arising from the performance
of Professional Services which are first made against the Insured and reported in writing to the Company while the
policy is in force.
This certificate of insurance neither amends, extends nor alters the insurance afforded by the policy
designated above.
The insurance afforded is subject to all of the terms of the policy, including endorsements, applicable thereto.
Lawyers' Mutual Insurance Company
n
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ANDKLW CHICK
presidetlt
TEL. 818-565,5512 FAK 8 1856-5516 3110 We,V Empire Avenue, 3urbank, Calliun wl 91504
cF Risk MmRgementDMsian
1'x REVIEWED & APPROVED BY.-
V"°
--� Risk janagement Analyst
1. AWY E R S'
M UT U A L
I., A
• 0 1 ' A
E-61 -al. ", '' :
ATTACHING TO AND FORMING PART OF POLICY NO.: 020853-ST-oi8
I. NAMED INSURED AND ADDRESS:
STEVE A. FILARSKY
ATTORNEYAT LAW
INDIVIDUAL
1441 19TH STREET
MANHATTAN BEACH, CA 90266
2' LAWYERS WHO ARE PARTNERS OF, STOCKHOLDERS IN, OR EMPLOYEES OF THE NAMED INSURED:
SEE Prior Acts Inclusion Endorsement Attached
3. PREDECESSOR FIRM:
FILARSKY & WATT LLP
4. DATE AMENDED:
12:oi a.m. PDT 05-01-2021
5. EXPIRATION DATE OF THIS POLICY. 05-01-2022
12:o1 a.m. PDT
6. ADDITIONAL PREMIUM: $0
7. LIMITS OF LIABILITY:
LIMIT OF LIABILITY EACH CLAIM:
LIMIT OF LIABILITY POLICY AGGREGATE: $1,000,000
$3,000,000
DEDUCTIBLE (CLAIMS EXPENSE & DAMAGES): $5,000
-See Policy Provisions for Full Description-
8. FORMS AND ENDORSEMENTS FORMING A PART OF THIS POLICY:
2020 UNIVERSAL; PAIE; TRIA-2002; CYBER
THESE DECLARATIONS, 2020 UNIVERSAL AND ENDORSEMENTS AS LISTED IN ITEM 8 ABOVE, CONSTITUTE THIS POLICY,
NUMBERED ABOVE.
DATE OF TRANSACTION: 04-14-2021
By:
Lawyers' Mutual Insurance Company
TEL: 818-565-5512 FAX: 818-565-5516 3110 West Empire Avenue, Burbank, CA 91504
cF Risk Mwagmend DiMisiun
REVIEWED & APPROVED BY.-
F04c"�" z VX*vd
Risk PjanagementAnalysti
Digitally signed by Tori
Pierson
To Ci Pierson Date: 2022.04.05 10:37:03
-07'00'
LAWYERT
MUTUAL
INSURANCE COMPANY
CERTIFICATE OF INSURANCE
This is to certify that the Professional Liability policy designated below has been issued to the insured attorney
or attorney firm named below and is in force at this time. Should the described policy be canceled before the
expiration date thereof, the issuing company mail 3o days written notice to the below named certification
holder, but failure to mail such notice shall impose no obligation or liability of any kind upon the company.
1. Certificate holder:
2. Name and address of Insured:
Steve A. Filarsky
Steve A. Filarsky
144119th Street
Attorney at Law
Manhattan Beach, CA 90266
144119th Street
Manhattan Beach, CA 90266
4. Limits of Liability
5. Policy Number
6. Policy Period
Lawyers
$1,000,000 each claim
To be issued
05-01-22 to 05-01-23
Professional
$ 3,000,0oo aggregate
Liability
$ 5,000 deductible
*Policy is effective and expires at 12:o1 a.m., standard time at the address of the named insured as
stated herein.
**Retroactive Date: May oi,1986
This is a "Claims -Made" policy. The coverage afforded by this policy is limited to Claims arising from the performance
of Professional Services which are first made against the Insured and reported in writing to the Company while the
policy is in force.
This certificate of insurance neither amends, extends nor alters the insurance afforded by the policy
designated above.
The insurance afforded is subject to all of the terms of the policy, including endorsements, applicable thereto.
**As used herein, "Retroactive Date" refers to the dated stated in the Prior Acts Endorsement or Prior Acts
Inclusion Endorsement of the Policy of insurance referred to herein.
Lawyers' Mutual Insurance Company
ANDRLW CHICK
Pmsident
TEL: 818-565-5512 FAX: 818-565-5516 3110 West Empire Avenue, Burbank, California 91504 Gawrye' r Risli Managernent CY'erir:.al'Aicfle