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TC Resolution 19-13 Appointing Paul Wisor as the Town Attorney and Approving the Agreement for Legal Services with Garfield & Hecht, P.C.A Avon COLORA00 RESOLUTION 19-13 APPOINTING PAUL WISOR AS THE TOWN ATTORNEY AND APPROVING THE AGREEMENT FOR LEGAL SERVICES WITH GARFIELD & HECHT, P.C. WHEREAS, the Town of Avon, Colorado (the "Town") is a home rule municipality and political subdivision of the State of Colorado (the "State") organized and existing under a home rule charter (the "Charter") pursuant to Article XX of the Constitution of the State; and WHEREAS, the Home Rule Charter of the Town of Avon states in Chapter X, Section 10. 1, that the Council shall appoint a Town Attorney to serve at the pleasure of the Council, who shall be admitted to practice in Colorado and shall have been in active practice at least five years prior to appointment; and WHEREAS, the Town of Avon solicited proposals for legal services; and WHEREAS, Paul Wisor of the law firm Garfield & Hecht, P.C., submitted a proposal for legal services and Mr. Wisor meets the qualifications for appointment as the Town Attorney of the Town of Avon; and WHEREAS, The Town Council of the Town of Avon desires to appoint Paul Wisor to serve as the Town Attorney and desires to retain the law firm of Garfield & Hecht, P.C.; and WHEREAS, the Town Council desires to promote an efficient transition in the office of the Town Attorney. NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON: 1. The Town Council hereby appoints Mr. Paul Wisor as the Town Attorney of the Town of Avon effective July 9, 2019. 2. The Town Council hereby approves the Agreement for Legal Services with the law firm of Garfield & Hecht, P.C. attached hereto as Exhibit A and authorizes the Mayor and Town Clerk to execute the Agreement for Legal Services. ACCEPTED, APPROVED AND ADOPTED this 9th day of July, 2019. AVON TOWN COUNCIL By: Attest:_ SardiSmith Hymes, Mayor B a Torres, Town Clerk AVON OFFICE GARFIELD & HECHT, P.C. 0070 Benchmark Road ATTORNEYS AT L A W Post Office Box 5450 Avon, Colorado 81620 Since 1975 Telephone: (970) 949-0707 www.jzarfieldhecht.com Facsimile: (970) 949-1810 July 9, 2019 VIA FMATT Town of Avon Attn: Honorable Sarah Smith Hymes P.O. Box 975 Avon, CO 81620 Re: LEGAL REPRESENTATION AND FEE AGREEMENT Madame Mayor: 1. Scope of Engagement; You Hire Us To Act As Your Attorney: Thank you for the opportunity to work with the Town of Avon (the "Town") as its Town Attorney. This letter shall serve as an agreement for our firm, through the appointment of Paul Wisor by Town Council to serve as Town Attorney, to represent the Town. Unless you specifically engage us to provide additional services after the completion of this engagement, we do not undertake to advise you with respect to future legal developments relating to this engagement. 2. Fees and Staffing; We Bill By The Hour: We will bill the Town on a tiered structure. Mr. Wisor and Shareholders within the firm within the firm with bill the Town for Town work at a rate of $195.00 per hour and Associates will be the Town at a rate of $185.00 per hour. For all work provided on behalf of the Town subject to reimbursement to the Town by developers or other third parties, Mr. Wisor and Shareholders within the firm will bill at a rate of $245.00 per hour and Associates will bill at a rate of $210.00. From time to time, we may assign other lawyers, primarily associates, or paralegals for discrete tasks. We agree to keep records of all time spent. Unless otherwise advised, you will be billed monthly. Unless otherwise agreed, you will be billed for professionals' time at increments of 1/101h hour. Our rates and fees are based on factors set forth in Rule 1.5(a) of the Colorado Rules of Professional Conduct, applicable to all Colorado attorneys. We periodically review and adjust the hourly rates of our attorneys, paralegals or other timekeepers in response to rising costs, market conditions or other factors law firms typically take into account. We shall not adjust our fees without first providing you with at least four (4) months' notice prior to any such adjustment. Nothing herein shall be construed as to constitute a multiple fiscal year obligation of the Town under Article X, Section XX of the Colorado Constitution or any other provision of Colorado law. 3. Expenses; You Will Reimburse Us For Expenditures On Your Behalf: You agree to pay promptly for such legal services and to pay all expenses incurred in connection therewith, such as long distance, court reporters, data compilation and management, office copying service, postage, Federal Express or other overnight carriers, filing, recording fees, secretarial overtime, and the like allocated to 2041977v1 Town of Avon July 9, 2019 Page 2 your legal matter. We may also incur travel, mileage, lodging and subsistence expenses for your legal matter for which you are also responsible. In certain matters, we will need to retain consultants, vendors and experts on your behalf. You authorize us to incur costs on your behalf, but we are not required to do so. We will attempt to obtain your consent before incurring costs in excess of $500.00, but you understand that circumstances may make it impractical to obtain your consent before incurring such costs. You agree that you are solely responsible for any costs incurred on your behalf. In lieu of advancing costs, we may request funds from you for the payment of anticipated costs, which will be kept in our COLTAF account until the costs are incurred. These payments or requested funds for payment must be paid promptly. 4. Litigation; We Cannot Guarantee Success: If our representation of you involves a contested or adversarial matter, we intend to assert your position vigorously and efficiently. However, you must understand that, in representing any client in a contested or adversarial matter, we cannot promise or guarantee the ultimate success of your position, whether in a lawsuit, arbitration or any other forum. Our performance also depends, in large part, upon your cooperation and particularly upon prompt receipt of information and instructions from you from time to time as the matter progresses. Further, the level of activity may, in large measure, depend on the steps the other parties may take and their willingness, if any, to resolve your dispute without a full-scale trial. We hereby advise you of the existence of alternative forms of dispute resolution which might reasonably be pursued to attempt to resolve the legal dispute or to reach the legal objective sought. 5. Payment; We Charge Interest On Late Payment: If you are billed for any legal services or expenses, you agree that payment must be made within 30 days of the date of any such bill. You will be charged compounded interest at a periodic monthly rate of 1.5% (this is an annual percentage rate of 18%) on any balance unpaid after 30 days, but in no event less than a 1.5% periodic monthly rate. In cases of our representation of a corporation or other business entity, your signature below constitutes your undertaking to be personally responsible for all statements rendered to such entities in the course of our representation. Unless otherwise agreed, where there are multiple clients, we look to each for full payment of our bills without having to wait for the others to pay their share pursuant to any arrangement that may exist among them. In the event that you do not pay an invoice within forty-five (45) days and no information is brought to our attention regarding a dispute as to the amount owed, we may elect to take legal action including a collection lawsuit to recover our unpaid legal fees and costs and accrued interest. Under such circumstances you agree to pay our reasonable legal fees and costs incurred in such collection activity and you further agree to submit to the jurisdiction of the County or District Court in Colorado of the county in which our office is located where the primary legal services were provided as reasonably determined by us. 6. Withdrawal; We Reserve The Right To Withdraw, You May Always Terminate Us: By written notice, we may withdraw as your counsel for reasons including, but not limited to, failure to pay fees or expenses, failure to cooperate with the firm, conflicting communications where there is more than one client and those mandated by the Colorado Rules of Professional Conduct or otherwise provided in this agreement. If permission for withdrawal from employment is required by court rules, the firm shall withdraw upon receiving permission from the court; and you agree to pay all legal fees until such permission is obtained or otherwise incurred incident to the winding up and conclusion of your 2041977vl Town of Avon July 9, 2019 Page 3 representation. Upon withdrawal, you shall immediately pay any remaining balance owed on your account. You may also terminate our employment by notifying us in writing. The firm reserves its right to assert a retaining lien or charging lien, as appropriate, on any unpaid balance. 7. Privacy; Your Assurance Of Confidentiality, When Disclosures Are Permitted: Subject to professional and ethical standards, all communications between us are protected by the attorney-client privilege. This privilege may be waived by you if you share the communications or advice with third parties. We advise you not to share or disclose attorney-client communications to any third parties without first consulting us. Additionally, we advise that you avoid posting any information related to the scope of our representation on social media, as this may result in a waiver of the attorney-client privilege. Any information that you post on social media may be discoverable by adverse parties; we advise you to avoid posting any information related to the scope of our representation or your underlying legal matter on social media. Confidential information may be shared by us with other attorneys, paralegals, contract attorneys or legal assistants and outside consultants retained on your behalf whose services are necessary in the course of our representation. Confidential information may also be disclosed by us to third parties where such disclosure is implied from the legal services you have requested us to provide such as our outside ethics counsel or our IT provider. We protect all such information with physical, electronic, and procedural safeguards that comply with our professional standards. If we are representing multiple clients in this matter, it is your responsibility to advise us if any information you may give us is confidential. Otherwise, all relevant communications received from you may be disclosed to other clients we represent in this matter. 8. Insurance; We Are Not Responsible For Insurance You May Have: It is possible you may have insurance policies relating to the matter wherein you have requested our assistance. You should carefully check all policies and, if coverage may be available, notify the insurance company about the matter as soon as possible. We do not undertake any responsibility to advise you as to the existence, applicability or availability of any insurance coverage or to give notice or tender any claims to any insurance company for any of the matters being handled by this firm. If any insurance company undertakes the payment of any portion of our billing statements, you will still remain responsible for any amounts not paid by the insurance company. Finally, if there is insurance involved in any transaction where we represent you, it is your responsibility to determine whether or not the underwriter has adequate resources to pay any claim. We are not financial analysts, and we do not have the expertise to advise you as to the financial condition of any underwriter or insurance agent. 9. Conflicts of Interest; Conflict Checks; Conflicts That May Arise Later and Waivers: To protect both of us and to comply with our professional obligations, our representation is subject to clearance of any conflicts of interest with present or former clients of our firm, as well as approval by the firm's management which reviews all new matters. The firm acknowledges and recognizes that the Town of Avon as the local government jurisdiction has regulatory, licensing, taxing and fee authority that affects all property owners and businesses in the Town of Avon. The firm shall use its best efforts to disclose all clients of the firm with property or business interests in the Town of Avon and shall promptly provide an updated client list at any time that the firm accepts new clients with property or business interests in the Town of Avon. The Town shall retain the firm's client list as confidential. Furthermore, the firm agrees to use its best efforts to disclose if the firm represents, or has formerly represented, any 2041977v1 Town of Avon July 9, 2019 Page 4 individual who has interaction with the Town of Avon concerning licensing or compliance with Avon's municipal code, regulations or other laws. Town acknowledges that the firm's representation on any specific matter is subject to clearance of any conflicts of interest with present or former clients of our firm, as well as approval by the firm's management which reviews all new matters. The firm agrees to not represent any individual or entity in any matter involving threated or actual litigation against the Town. Further, Paul Wisor will not represent any individual living within the Town nor any property owner or business interest or transactional matter within the Town. In the event of an actual or potential conflict of interest with the Town arises as a result of proposed representation by a lawyer in our firm other than Paul Wisor of a present or future client in a transactional matter, the firm agrees to promptly consult with the Town. If the conflict cannot be resolved through a waiver of a conflict of interest signed in writing by the Town the firm agrees that it will not engage in the matter giving rise to the potential conflict. 10. File Retention Policy; When Your Files May Be Disposed Of: The firm reserves the right to dispose of any file four (4) years after the legal matters described therein have been resolved or four (4) years after the last work on the matter has been performed, whichever is first. If you wish to obtain your file, you must do so by written request within said four (4) year period. You agree to be responsible for the shipping and handling charges incurred in forwarding these files to you or to any third party you may designate. 11. Dispute Resolution; We Will Try To Resolve Disputes By Mediation And If Not Successful Then By Arbitration: In the event of any dispute, controversy or claim (a "Dispute') arising from or relating to (1) this agreement or breach thereof, including a dispute as to the amount owed for legal fees or (2) any representation or services provided by the firm including possible malpractice where the Dispute cannot be resolved by direct discussions between the parties, you and this firm agree to first endeavor to resolve the Dispute by mediation before resorting to arbitration. Mediation may be initiated by written notice by either party who has authority to resolve the Dispute. If the Dispute is not resolved within sixty (60) days after the beginning of mediation then, upon written notice by either party to the other, the dispute shall be finally resolved by binding arbitration conducted by, and in accordance with the rules of the Judicial Arbiter Group, Inc., or, if such entity is no longer functioning, its successor or such other entity most nearly performing the same function in Colorado as we may reasonably determine. BY AGREEING TO ARBITRATION THIS FIRM AND YOU AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY. On balance we believe arbitration is a worthwhile way to resolve Disputes because it can be done expeditiously and with less expense than litigation. The place of mediation and arbitration shall be in the county in Colorado in which our office is located where the primary legal services were provided as reasonably determined by us. Except as may be required by law, a party, mediator or arbitrator may not, with respect to a Dispute, disclose the existence, content or results of any discussions, mediation, or arbitration hereunder without the prior written consent of both parties, and the process of discussions, mediation, if necessary, and arbitration, if necessary, shall, to the fullest extent allowed by law, be the sole means of resolving any Disputes. If we prevail in the arbitration, you agree to pay our reasonable attorney fees and costs incurred. As to non-payment of legal fees only, and provided neither party has requested mediation or arbitration, we reserve the right to file a collection lawsuit. If we have commenced a collection lawsuit for legal fees owed and in the course of that litigation you raise any 2041977vl Town of Avon July 9, 2019 Page 5 matters that are required to be resolved in accordance with the dispute resolution procedures set forth herein, we shall dismiss or stay the litigation and submit the dispute to these resolution procedures. 12. E -Mail Alerts; Website: If you have provided us with your e-mail or mailing address, we may periodically send to you via e-mail or regular mail alerts involving firm news or changes in laws. If you do not wish to receive these alerts, please let us know, and we will omit your name from our distribution list. Sending such alerts is solely a courtesy to our clients and does not give rise to any duty on our part to keep you informed of changes in laws or constitute legal advice. Documents we send you by e-mail (whether or not containing confidential information) will not be encrypted unless you request us, in writing, to encrypt outgoing e-mail and we are able, without significant additional cost, to agree with you and implement mutually -acceptable encryption standards and protocols. We make reasonable attempts to exclude from our e-mails and any attachments any virus or other defect that might affect any computer or information technology system. However, it is your responsibility to put in place measures to protect your computer system against any such virus or defect, and we do not accept any liability for any loss or damage that may arise from the receipt or use of electronic communication from us. If you are a corporation or other form of entity, your signature below constitutes a consent to include your name in the Representative Client listing appearing on our website. We never post the names of individuals on the list. If you do not wish to have your name appearing on the listing, please let us know. Please acknowledge your acceptance of the terms set forth herein by executing this letter and returning it to the undersigned or send it back in electronic format. We look forward to working with you. Very truly yours, GARFIELD & HECHT, P.C. By: Paul F. Wisor AGREED TQ: Sarah Smith Hymes, Mayor, Town of Avon If a different billing address is not provided below the address at the beginning of this engagement letter will be used for billing purposes. You may also elect to have your billing emailed to you. Please select your preferred method of delivery below. ❑ Billing Mailing Address: ❑E -Mail Billing E-mail Address: 2041977v1 Town of Avon July 9, 2019 Page 6 cc: Eric Heil, Avon Town Manager 2041977v1