HomeMy WebLinkAbout25-132 Designating a Hearing Officer to Preside over Recall Petition Sufficiency Protest Agreement 12-10-2025RESOLUTION 25-132
A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE,
COLORADO, DESIGNATING A HEARING OFFICER TO PRESIDE OVER RECALI.
PETITION SUFFICIENCY PROTESTS IN THE TOWN AND APPROVING A
PROFESSIONAL SERVICES AGREEMENT PERTAINING THERETO
WHEREAS, the Town has received protests related to the fown Clerk's determination
of sufficiency for recall petitions ins oh ing four elected officials: and
HE AS, the Town desires to designate a hearing officer to preside over such
hearings in accordance with '.R..S'.§31-4-503(3)b).
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF
THE TOWN OF FIRESTONE, COLORADO:
Section!. The Town Board of Trustees hereby designates Karen B. Goldman as the
hearing officer to preside over the filing of written protests concerning the Town Clerk's
sufficiency determinations for four recall petitions.
Section 2. The Professional Services Agreement between the Town of Firestone and
Karen D. Goldman is approved, in substantially the same form as the copy attached hereto as
Exhibit A, with such additions or modifications as the l'ovn Attorney may determine to be
necessary and appropriate to protect the interests of the Town or to effectuate the purposes of this
Resolution.
PASSED AND ADOPTED this 10th day of December, 2025.,
AT'1:LS I:
NI TajlGi!-�-4os .Luna, C'Nl', Town Clerk
AP O AS TO FORM
l Keith �, Town Attorney=
Exhibit A
{C ldrnan/Fir stone ProfessionaJ Services Agreement}
2
WHEREAS, the Town requires certain professional hearing officer services l and
WHEREAS, Contractor has held itself out to the Town as having the requisite expertise and
experience to perform the required professional services.
A. Contractor shall furnish all labor and materials required for the complete and prompt execution
and performance of all duties, obligations, and responsibilities which are described or reasonably
implied from the Scope of Services set forth in Exhibit A, attached hereto and incorporated
herein by this reference and known as 2025 Recall Petition Sufficiency Protest Hearing
Officer
B. A change in the Scope of Services shall not be effective unless authorized as a modification to
this Agreement. If the Contractor proceeds without such written authorization, Contractor shall
be deemed to have waived any claim for additional compensation, including a claim based on
the theory of unjust enrichment, quantum merit or implied contract, Except as expressly provided
herein, no agent, employee, or representative of the Town is authorized to modify any term of
this Agreement, either directly or implied by a course of action.
!A y i as uVIIihVi1L*11
A, This Agreement shall commence on the Effective Date and shall continue until Contractor
completes the Scope of Services to the satisfaction of the Town or until terminated as provided
herein.
B. Either Party may terminate this Agreement upon 30 days advance written notice. The Town shall
pay the Contractor for all work previously authorized and completed prior to the date of
termination. If, however, Contractor has substantially or materially breached this Agreement, the
Town shall have any remedy or right of set -oft available at law and equity,
In consideration for the completion of the Scope of Services by Contractor, the Town shall pay
Contractor an amount not to exceed 4000jhis amount shall include all fees costs and
expenses incurred by Contractor, and no additional amounts shall be paid by the Town for such
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fees, costs, and expenses. Contractor may submit periodic invoices, which shall be paid by the
Town within 30 days of receipt,
A. Contractor hereby warrants that it is qualified to assume the responsibilities and render the
services described herein and has all requisite corporate authority and professional licenses in
good standing required by law. The work performed by Contractor shall be in accordance with
generally accepted professional practices and the level of competency presently maintained by
other practicing professional firms in the same or similar type of work in the applicable
community. The work and services to be performed by Contractor hereunder shall be done in
compliance with applicable laws, ordinances, rules, and regulations, including the preference for
Colorado Labor set forth in C,R,S. Article 17 Title 8,
B. The Town's review approval or acceptance of, or payment for any services shall not be
construed to operate as a waiver of any rights under this Agreement or of any cause of action
arising out of the performance of this Agreement,
C, Because the Town has hired Contractor for its professional expertise, Contractor agrees not to
employ Sub -Contractor s to perform any work except as expressly set forth in the Scope of
Services
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,... Any materials, items, and work specified in the Scope of Cervices, and any and all related
documentation and materials provided or developed by the Contractor shall be exclusively
owned by the Town. The contractor expressly acknowledges and agrees that all work performed
under the Scope of Services constitutes "work made for hire," To the extent, if at all, that it does
not constitute a "work made for hire,'the Contractor hereby transfers, sells, and assigns to the
Town all of its right, title, and interest in such work. The Town may, with respect to all or any
portion of such work, use, publish, display, reproduce, distribute, destroy, alter, retouch, modify,
adapt, translate, or change such work without providing notice to or receiving consent from the
Contractor.
B. If the Town reuses or makes any modification to Contractor's designs, documents or work
product without the prior written authorization of the Contractor, the Town agrees, to the fullest
extent permitted by law, to release the Contractor, its officers, directors § employees and sub -
Contractors from all claims and causes of action arising from such uses, and shall to the extent
permitted by law indemnify and hold them harmless from all costs and expenses, including the
cost of defense, related to claims and causes of action to the extent such costs and expenses
arise from the Town's modification or reuse of the documents,
C. The Town expressly acknowledges and agrees that the documents and data to be provided by
Contractor under the Agreement may contain certain design details, features and concepts from
the Contractor's own practice detail library, which collectively may form portions of the design for
the Project, but which separately are, and shall remain, the sole and exclusive property of
Contractor, Nothing herein shall be construed as a limitation on the Contractor's right to re -use
such component design details, features and concepts on other projects, in other contexts or for
other clients,
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Contractor is an independent Contractor, l lotwithstanding any other provision of this A reement
all personnel assigned by Contractor to perform work under the terms of this Agreement shall
be, and remain at all times, employees or agents of Contractor for all purposes, The contractor
shall make no representation that it i a Town employee for any purposes,
Notwithstanding the fact that Contractor acts a and is compensated a an independent
contractor, pursuant to the Color do Governmental immunity Act, Section 4- S-101, S.R.S., e
Contractor shall be considered an appointed official of the Town entitled to any and all
benefits of law pertaining to governmental immunity and to coverage y the Town's insurance
applicable 'to persons holding such a position; The Town hereby declares Contractor to b a
municipal official of the Town of Firestone for purposes of including the Contractor as n insured
official subject to the Town's insurance coverage for claims against the Contractor arising out of
injuries sustained from an actor omission of such Contractor occurring during the performance
of her duties and within the scope of her duties, except where such actor omission is found by
the court to be willful and wanton. The Town has determined that the Contractor will bo an
Insured municipal official within the Town's policy of insurance only during the Terra,
V0L INDEMNIFICATION
A. Contractor agrees to indemnify acid hold harmless the Town and its officers, insurers, volunteers,
representative, agents, employees, heirs and assigns from and against all claims liability, damages,
losses, expenses and demands, including attorney fees on account of injury, loss, or damage,
including without limitation claims arising from bodily injury, personal injury, sickness, disease,
death, property loss or damage, r any other loss of any kind whatsoe er, which arise out of or
are in anymanner connected with this Agreement if such injury, loss; or damage is caused in
whole or it part by the act, omission, error, professional error, mistake, negligence, recklessness
or other fault of Contractor, any Sub -Contractor- of Contractor, or any officer; employee;
representative, or agent of Contractor, or which arise out of worker's compensation claim of
any employee of Contractor or of any employee of any Stab -Contractor of Contractor. Contractor's
liability under this indemnification provision shall e to the fullest extent of, but shall not exceed, that
amount represented by the degree or percentage of negligence<or fault attributable to Contractor;
c:;.C of Contractor„_ or any officer, employee, representative, or agent of Contractor
or of any Sub -Contractor cif Contractors.
. If the Contractor is providing architectural, engineering, survey€rig or other design services under
this Agreement the extent of the Contractor's obligation to indemnify and hold harmless the Town
may be determined Manly after the Contractor's liability or fau.......1 determined by adjudication,
alternative dispute resolution or otherwise resolved by mutual Agreement between the Parties, as
provided by .f .S 13-50,5-1Ci Sj(c),
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A. Change Order is a written instrument issued after execution of the Agreement signed by Town
and Contractor, stating their Agreement, as applicable, upon all of the following:
1. The scope of the change in the Work,
2. The amount of the adjustment to the Contract Price and
3. The extent of the adjustment to the Contract Times(s),
B. All changes in the Work authorized by the applicable Change Order shall be performed under
the applicable conditions of the Contract Documents, Town and Contractor shall negotiate in
good faith and as expeditiously as possible the appropriate adjustment of such changes,
Fig
A, Governing Law and Venue, This Agreement shall be governed by the laws of the State of
Colorado, and any legal action concerning the provisions hereof shall be brought in Weld County,
Colorado.
. No Waiver; Delays in enforcement or the waiver of any one or more defaults or breaches of this
Agreement by the Town shall not constitute a waiver of any of the other terms or obligations of
this Agreement
C. Into ration; This Agreement constitutes the entire Agreement between the Parties, superseding
all prior oral or written communications,
D. Third Parties, There are no intended third- party. beneficiaries to this Agreement.
E Notice. Any notice under this Agreement shall be in writing and shall be deemed sufficient when
personally presented or sent pre -paid, first-class United States Mail to the Party at the address
set forth on the first page of this Agreement;
F. Seyerability. If any provision of this Agreement is found by a court of competent jurisdiction to
be unlawful or unenforceable for any reason, the remaining provisions hereof shall remain in full
force and effect,
G. Modification. This Agreement may only be modified upon written Agreement of the Parties
Assignment Neither this Agreement nor any of the rights or obligations of the Parties shall be
assigned by either Party without the written consent of the other
1. Governmental immunity, The Town and its officers, and employees, are relying on, and do not
waive or intend to waive by any provision of this Agreement, the monetary limitations or any
other rights, immunities or protections provided by the Colorado Governmental Immunity Act,
CR S § 24-1g-101, et seq., as amended, or otherwise available to the Town and its officers,
attorneys or employees.
J. Rights and Remedies. The rights and remedies of the Town under this Agreement are in addition
to any other rights and remedies provided by law, The expiration of this Agreement shall in no
way limit the Town's legal or equitable remedies, or the period in which such remedies may be
asserted, for work negligently or defectively performed
K Subject to Annual Appropriation. Consistent with Article X, § 20 of the Colorado Constitution,
any financial obligation of the Town not performed during the current fiscal year is subject to
annual appropriation, shall extend only to monies currently appropriated, and shall not constitute
a mandatory charge, requirement, debt or liability beyond the current fiscal year.
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L. ReresuitatNe AuthQrit .Each person signing this Agreement represents and warrants that he
or she is duly authorized and has the legal capacity to execute the Agreement.
IN I l WHEREOF, the Parties ha e executed this Agreement as of the Effective Date,
}
SEAl
KAREN B. GOLDMAN
By
Karen Goldman
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Contractor °s rties- Curing the terra of this Agreement, Contractor shall perform the following' duties, j5.
directed by the Town:
Contractor shall conduct one or more administrative protest hearings o behalf of the Tovrr
of Firestone Tern Clerk's Office challenging the Town Clerk's initial determination s to the
sufficiency of a recall petition seeking the recall of Trustee Ray Byrd, Trustee Lorna Dorton,
Trustee Sean C oherty, and Trustee Frank Jimenez teach individually a "Petition°' collectively,
the `Petitions'"j, in accordance with the municipal recall statutes, Town ordinances, and other
applicable state law, The hearing jsj on all the Petitions must e concluded b no later than
December , 2025.
Contractor shall conduct the hearing as follows
Hearings shall not be conducted according to technical rules of evidence, however:
Oral evidence shall be taken only on oath or affirmation
Admissibility of evidence, Any relevant evidence shall be admitted if it i the
sort of evidence on which reasonable persons are accustomed to rely upon
in the conduct of serious affairs, regardless of the existence of any common
law or statutory rule which Wright make improper the admission of such,
evidence over objection in civil actions in courts of competent jurisdiction in
this state,
Exclusion of` evidence, The Hearing Officer has discretion to exclude
evidence if its probative value i substantially outweighed by the probability
that its admission will necessitate undue consumption of time.
The rules of privilege shall be effective to the extent that they are atherwise
required by statute •o be recognized at the hearing:
All evidence must be part cif the record and the Hearing Officer shall not
conduct independent investigations or engage in off -the record
conversations with witnesses or parties regarding the matter under
consideration b the Hearing Officer.
Prior to the day of the administrative hearing, Contractor shall research if necessary, all
relevant case law and applicable state rules, regulations, and/or policies governing the
subject;matter of the hearing,
Post -Alf ministrative hearing, Contractor shall research if necessary, all relevant case lave
and applicable state rules, regulations, and/or policies governing the subject matter of the
hearing and to` fully and properly adjudicate any issues raised t the hearing,
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• Contractor may retain any copies of exhibits and materials submitted prior to or at the
hearing and maintain a file for each hearing.
Contractor s Deliverables
In the performance of the duties described above, the Contractor shall deliver the following items to
the Town during the timeframes established by the Towne No later than five days after the conclusion of a
hearing, the hearing officer shall issue a written determination of whether the Petitions are sufficient or not
sufficient, based upon the evidence received at the hearing to support its decision, If the hearing officer
determines that a Petition is not sufficient, the hearing officer shall identify in the written determination those
portions of the Petition that are not sufficientand the reasons for the insufficiency. Contractor shall deliver
the decision to the Town and the Town shall be responsible for copying and serving the decision on all
interested parties.
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