HomeMy WebLinkAbout20181886.tiffRESOLUTION
RE: APPOINTMENT OF ATTORNEY SCOTT GESSLER AS SPECIAL COUNSEL TO
PROVIDE LEGAL ADVICE TO AND REPRESENTATION OF THE WELD COUNTY
CLERK AND RECORDER REGARDING RECALL AFFIDAVIT, PROCESS AND
PROCEDURES AND AUTHORIZE CHAIR TO SIGN LETTER OF ENGAGEMENT
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter ("Charter"), is vested with the authority
of administering the affairs of Weld County, Colorado, and
WHEREAS, Section 5-4 of the Charter authorizes the Board of County Commissioners to
appoint special counsel for the purpose of making investigations and representing the County in
suits by and against the County, its officers, or its agencies, and
WHEREAS, the Weld County Clerk and Recorder has received an affidavit from a Weld
County citizen requesting the recall of a Weld County Commissioner, pursuant to Charter
Section 15-3, and
WHEREAS, the recall procedures set forth in Charter Section 15-3 and in C.R.S. Title 1,
Article 12, Part 1, include authority for the elected official who is the subject to the recall to protest
various aspects thereof, with such protests being made in and determined by a court of competent
jurisdiction, and
WHEREAS, because of the potential for such protests in court and the inherent conflict
such protests could create for the County Attorney, the Clerk and Recorder is in need of the
appointment of Special Counsel to provide legal advice regarding the recall affidavit, process and
procedures, and to represent the Clerk and Recorder in court for such protests, if necessary, and
WHEREAS, attorney Scott Gessler has agreed to provide such legal advice and
representation pursuant to a letter of engagement, a copy of which is attached hereto.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that attorney Scott Gessler be, and hereby is, appointed as Special Counsel
to provide legal advice and representation to the Weld County Clerk and Recorder regarding the
aforementioned recall affidavit, process and procedures, pursuant to the terms set forth in the
attached letter of engagement.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said letter of engagement on behalf of the Board.
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�-02-9✓1g
2018-1886
CR0030
APPOINTMENT OF ATTORNEY SCOTT GESSLER AS SPECIAL COUNSEL
PAGE 2
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 18th day of June, A.D., 2018.
BOARD OF COUNTY COMMISSIONERS
WELD,OUNTY, COLORADO
ATTEST: de,thivudeO4A
Weld County Clerk to the Board
BY:
AP
Deputy Clerk to the
County Attorney
Steve Moreno, Chair
RECUSED
Barbara KirkmeyerPro-Tem
(AYE)
Date of signature: /Co ao-18
(AYE)
2018-1886
CR0030
June 14, 2018
KLENDA GESSLER & BLUE
PDF VIA EMAIL, bbarker@weldgov.com
Bruce T. Barker, Esq.
Weld County Attorney
P.O. Box 758
1150 "O" Street
Greeley, CO 80632
Carly Koppes
Weld County Clerk and Recorder
1402 N. 17th Avenue
Greeley, CO 80631
Re: Engagement Letter and Fee Agreement.
Dear Mr. Barker and Ms. Koppes,
Thank you for the opportunity to represent Carly Koppes, in her capacity as Weld County
Clerk and Recorder. Our first and foremost loyalty is to you, so please always be open and direct in
your communications with us. And in return, we will always give your our best efforts, as well as the
best legal services and most creative solutions anywhere.
This Engagement Letter and Fee Agreement sets forth the scope and nature of our legal
services. Please review it carefully, along with the attached terms and conditions. While this
agreement accounts for potential contingencies and circumstances that are unlikely to arise, we
nonetheless want to ensure you understand all of those potential contingencies.
1. Party represented. We will represent Carly Koppes, in her official capacity as Weld
County Clerk and Recorder.
2. Character of Services and Responsible Attorney. We will provide advice and
representation regarding the effort to recall Weld County Commissioner Barbara Kirkmeyer. We will
perform all tasks or services that, in our professional judgment and discretion, are necessary or
appropriate. I will be the attorney primarily responsible for this matter and will work with other
attorneys or paralegals as appropriate.
3. Fee Arrangements. Our fees are determined on an hourly basis, vary with the
experience and seniority of the individuals assigned, and may occasionally be adjusted, with advance
notice to you. My hourly rate for this matter will be $250.00, as is that of my partners, Steven Klenda
and Geoff Blue. Other attorneys and legal assistants may also be involved in your representation as
1624 Market Street, Suite 202 • Denver, CO 80202 • Phone 720.432.5705 ozba. /OLP
appropriate. Other attorneys' time will be billed at $150 to $200 per hour, depending on the
individual attorney's skills and experience. Paralegals are billed at $90 to $125 per hour. We bill in
one -tenth of an hour increments.
4. Fee Advance. We will not require an initial fee advance. In the event we receive a
fee advance, we will hold all fee advances in our client trust account and bill fees against this retainer
on a monthly basis. At the conclusion of this matter and termination of this engagement, we will
return all remaining, unbilled fee advances to you.
5. Representation Limited to Your Request. Our work for you will be limited to the
subject in the second numbered paragraph of this letter, unless you specifically request our advice or
representation on other issues or projects and we agree, in writing, to perform that additional work.
After we complete the work described, we will not assume continuing responsibility to advise you
on matters affecting the work we have performed unless we both agree in writing that our
representation extends to providing continuing advice.
6. No Conflicts of Interest. We are not currently aware of any conflicts of interest.
Nonetheless, one of the most important considerations is whether our representation of you will put
us in conflict with any existing client's interests. If such a conflict is discovered after we have
commenced work, we may be disqualified from continuing to represent you. It is, therefore, very
important that you consider all of the involved parties and interests, to be certain that you have
advised us fully. If, in our judgment, we determine that a conflict of interest does exist, we will notify
all affected clients and will proceed in a manner consistent with the ethical standards contained in
the Colorado Rules of Professional Conduct.
7. Choice of Law and Interpretation. This Engagement Letter and Fee Agreement
will be interpreted and enforced under Colorado law. Any unenforceable provision of this
Engagement Letter and Fee Agreement will be severed from the other provisions, and the
remainder of this Engagement Letter and Fee Agreement will be enforced to the fullest extent
possible.
8. Terms and Conditions. Our representation of you is subject to the attached terms
and conditions, which are incorporated into this letter by reference. Please indicate your acceptance
of these terms by signing below, initializing each page of the Terms and Conditions, and returning a
copy with your original signatures to me.
If you have any questions about the provisions of this letter or the related Terms and
Conditions, please contact me immediately. Please also feel free to contact me if you ever have any
questions (however large or small) about any aspect of our representation of you, so that we can
promptly resolve any issues.
Very truly yours,
KLENDA GESSL.ER & BLS, E, LLC
By:
Scott E. Gessler
ACCEPTED and AGREED TO by Steve Moreno , this 18th day of June 2018
By:
J
Steve Moreno
Chair, Board of Weld
Title: County Commissioners
0740/i 1/4e /a le,.
STANDARD TERMS AND CONDITIONS OF REPRESENTATION
These Standard Terms and Conditions of Representation apply to the relationship between you and Klenda Gessler & Blue
LLC (the "Firm" or "We"), and are made a part of the accompanying Engagement Letter and Fee Agreement between you and the Firm:
1 Fees. We will bill our services at the hourly rates effective when we perform a service. These rates vary between attorneys and legal
staff. Our hourly rates for a particular matter are based on the time and labor required. novelty, difficulty, or complexity of the issue, skill
required, experience and ability of the attorney or legal staff involved. The hourly rates set in the accompanying Engagement Letter and
Fee Agreement are subject to change from time -to -time, upon written notice to you. The time for which you shall be charged includes,
but is not limited to, time spent on telephone and office conferences with you and other counsel, witnesses, consultants, court
personnel and others, factual investigation, legal research, responding to your requests to provide information to governmental or
regulatory entities related to reviews or audits of financial statements or tax information, drafting of letters, agreements, pleadings,
motions, briefs and other documents, traveling, court appearances, including waiting in court, depositions and other discovery
proceedings.
2. Costs. In addition to our fees, we reserve the right to bill you separately, and typically monthly. for any costs or expenses that we
incur in representing you and for ancillary items, including, but not limited to, services of outside vendors (e.g., photocopying, scanning,
litigation support, etc.), messenger and delivery services, computer research, travel (including mileage, parking, airfare, lodging, meals
and ground transportation), telephone, secretarial overtime, court costs and filing fees, litigation -related fees and costs (e.g.,
depositions, mediations, electronic media used in court, hearing transcripts, trial transcripts, court -file transcripts, deposition transcripts,
and any other type of transcript), expert witnesses, expert or professional consultants (e.g., special counsel, accountants. etc.). Unless
we otherwise agree in writing, we shall not be responsible for paying the fees and expenses of others. These fees are your
responsibility and may be billed directly to you without first being paid by us.
3. Fee Advances. The fee advance, if any, you have agreed to provide us in the accompanying Engagement Letter and Fee
Agreement shall be deposited in the Firm's trust account. Each month, we shall bill against the fee advance for legal services rendered,
and any costs or expenses incurred on your behalf. Unless we make an alternative agreement with you, you shall continually maintain,
o n a monthly basis, the agreed -upon amount of the fee advance billed against, the balance of which shall be accounted to you in our
billing statements. If we learn that the amount of work or expense required for your representation will increase beyond our current
estimate, we will notify you immediately. With respect to any anticipated increase in the work or expense required for your
representation, we have the right, as a condition to providing further services, to require you to increase your fee -advance amount.
4. Estimates Not Binding. Although we may furnish you estimates for fees or costs we anticipate to be incurred, these estimates,
inexact by nature, are subject to unforeseen circumstances, and as such, shall not be binding.
5. Billing and Payment. Fees and expenses shall generally be billed monthly and are due upon receipt. We expect (and appreciate)
prompt payment. Subject to any applicable ethical rule, we reserve the right to postpone or defer providing you further services, or to
discontinue our representation if billed amounts are not paid when due.
6. Cooperation. You shall cooperate with us fully in our representation of you, and shall promptly provide us with all known and
available information relevant to the representation. You also shall pay our billing statements for services rendered, and any charges. in
accordance with these Standard Terms and Conditions of Representation, and our accompanying Engagement Letter and Fee
Agreement with you.
7. Termination by You. You have the right at any time, in your sole discretion, to terminate our representation of you. If you terminate
o ur representation, you shall remain obligated to pay our fees for all services rendered, and costs or expenses paid or incurred on your
behalf, prior to the date of our termination, and which are permitted and necessary thereafter.
8. Termination by Us. We reserve the right to withdraw from representing you if, among other reasons, (i) you fail to honor the terms
of the accompanying Engagement Letter and Fee Agreement, or of these Standard Terms and Conditions of Representation, (ii) you
fail to cooperate or follow our advise on a material matter, or (iii) any factor or circumstance occurs that would, in our opinion, render
o ur continuing representation of you unlawful or unethical. If we elect to withdraw for any of these reasons, or as permitted by ethical
rules, you shall take all steps reasonably necessary to facilitate our withdrawal, which may include seeking substitute counsel, and you
shall release us from any further obligation to provide you services related to this matter, including execution of any documents
necessary to complete our withdrawal, and, immediately upon withdrawal, you shall pay us for all of our services rendered to you, and
all costs and expenses paid or incurred on your behalf.
9. Date of Termination. Our representation of you shall terminate at the earlier of (i) your termination of our representation, (ii) our
withdrawal from representing you, or (iii) our sending you our final billing statement for services rendered, and costs or expenses paid
o r incurred on your behalf in connection with this matter.
Standard Terms and Conditions of Representation, Page e 1 of 2 p g'OM
Initial Date
0•Zo/t /in°
10. Related Activities. If any claim or action is brought against the Firm or any of its personnel, by reason of your negligence or
misconduct, or if we are asked or required to testify as to our representation of you, or we must defend the confidentiality of your
communications with us in any proceeding, you agree to pay us for any resulting costs or damages incurred, including our time, even if
our representation of you has ended.
11. No Guarantee of Outcome. We shall do our best to provide you with the legal services and advice necessary to achieve a
satisfactory result. However, the outcome of litigation, arbitration or other representation is inherently uncertain and/or risky. Therefore,
we do not and cannot make any promises or guarantees about any outcome in any matter in which we represent you.
12. Conflicts. Our ethical obligations require us while representing you to decline any other representation which conflicts directly with
your representation, except under circumstances where you may consent in writing to the other representation. When this
representation of you has ended, however, you understand that we shall not be precluded from undertaking representation adverse to
you, except where a substantial relationship exists between that representation and our present or previous representation of you. We
shall not disclose any of your confidential information we obtain or receive in the course of representing you in any future representation
without your consent. Similarly, we shall not disclose to you the confidences of our other clients, even if such disclosure might be to
your advantage.
13. Client. As set forth in our Engagement Letter and Fee Agreement with you accompanying these Standard Terms of Conditions of
Representation, you are the Firm's client for purposes of our representation. Unless otherwise expressly agreed in writing, we shall not
undertake to represent (i) any person or entity related to or affiliated with you, (ii) any of your relatives (including your spouse, parents,
children, brothers or sisters), subsidiaries, or affiliated corporations or entities, and (iii) any members, officers, directors, agents or
employees associated with you or any related or affiliated entities.
14. Payment Notwithstanding Dispute. In the event you dispute our entitlement to any payment during our representation of you, you
shall pay us all undisputed amounts as provided by our Engagement Letter and Fee Agreement with you, and these Standard Terms
and Conditions of Representation. Any amounts held on your behalf in any client trust account, sufficient to pay the disputed amounts,
shall continue to be held in such trust account until final resolution of the dispute.
15. Notice of Document Retention and Destruction Policy. In the course of our representation of you, we will likely obtain or receive
copies or originals of documents that belong to you or others (collectively, "materials"). Except as to property to which you are entitled
to receive (e.g., an award or recovery of money, valuable personal property, original security certificates, negotiable instruments,
deeds, wills, etc.), NOTICE IS HEREBY GIVEN TO YOU that, unless otherwise required by law or ethical rule, once the particular
matter to which the materials relate has concluded, (i) we have no further responsibility to maintain the materials, (ii) we have the right
to return the materials to you, and (iii) we have no obligation to maintain copies or any other record of the materials after we return them
to you. We also have the right to destroy all such materials if you do not seek their return within 1 year after the related representation
of you has ended. We may, but are not required to, retain copies of the materials, including attorney -work product, related to our
representation of you on a particular matter after the representation has ended. You must provide written authorization to us before we
will transfer any portion of the files we maintain that relate to our representation of you to someone else.
16. Interest. All billing statements are due within 30 days of each statement date. We reserve the right to charge interest at an annual
rate of 12%, compounded monthly, on the total of all outstanding sums (whether for fees, reimbursement of costs or expenses, or
u npaid interest) not paid within 30 days of the date of any statement that details the unpaid sums. Our failure to impose an interest
charge on any occasion, or on multiple, numerous, and repeated occasions, shall not constitute a waiver of our right to thereafter
impose the interest charge on unpaid amounts from the 30th -day after each unpaid amount was initially billed.
17. Application to Subsequent Matters. Unless otherwise agreed in writing, the agreement reflected in these Standard Terms and
Conditions of Representation, and in our accompanying Engagement Letter and Fee Agreement with you, shall apply not only to our
current representation of you but also to any subsequent matters on which we agree to represent you.
18. Collection and jurisdiction. The Firm shall be entitled to recover all reasonable attorneys' fees and costs or expenses that it
incurs (including the market value of the time Firm attorneys or other personnel spend in representing the Firm), whether or not we
bring suit. You consent to the exclusive jurisdiction of Colorado courts for all purposes, including collection, related to our representation
of you, and agree to accept personal service via certified mail, return receipt.
19. Attorney's Lien. The Firm shall have a lien for its reasonable attorneys' fees and costs or expenses advanced on all claims and
causes of action related to its representation of you, which you agree is subject to both these Standard Terms and Conditions of
Representation, and our accompanying Engagement Letter and Fee Agreement with you, and on all proceeds of any award or recovery
o btained on your behalf (whether by settlement, arbitration award, or court judgment).
20. Non -Written Modifications Void. Any purported modifications to these Standard Terms and Conditions of Representation or to
o ur accompanying Engagement Letter and Fee Agreement, not in writing and signed by both you and the Firm shall be ineffective, null,
and void.
Standard Terms and Conditions of Representation, Page 2 of 2
PH- (obi
Initial Date
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