Author Archives: admin

Trademarks

There are many things to consider when it comes to starting a business in Colorado. From choosing a name to filing the necessary paperwork, the process of a business start-up can be quite overwhelming. One of the most important factors of the business to consider is how to promote the product or service being offered. Many business owners choose a Trademark to not only promote their business, but to differentiate their products or services from others in the marketplace. A Trademark, which can be a word, name, slogan, or symbol is basically a brand classified as Intellectual Property.

A Trademark can be registered with the United States Patent and Trademark Office (USPTO). There are many regulations to comply with while filing in which the owner of the mark is responsible. Not only are there specific regulations to adhere to, the process of researching state and federally registered Trademarks and those trademarks that are not registered, can be quite tedious. While the USPTO only registers trademarks, it is up to the owner of the trademark to understand the application and registration process and to enforce the Trademark once registered, which is why it is imperative to hire a private trademark attorney with the knowledge and experience necessary to deal with the legalities pertaining to such marks.

Ted Bendelow of Bendelow Law Office, LLC has been providing general counsel, to include Intellectual Property Law, for over 38 years. He has represented a client that had 54 trademarks. Ted understands the complex nature of Trademark law and has the experience to handle the legal hurdles that can arise during the Trademark registration process. He proudly offers his legal expertise in Trademark law in Boulder, Denver, Longmont and surrounding areas. From the USPTO application process to protecting the rights of your registered Trademark, Ted Bendelow of Bendelow Law Office, LLC is a trusted, knowledgeable Trademark Attorney who is ready to work for you.

If you’re a business owner in Colorado and need a legal team to assist with a Trademark, contact the team at Bendelow Law Office, LLC.

50-50 AGREEMENTS

When two folks decide to do business together, they commonly agree that they are 50-50 partners, whether a partnership; a corporation or an LLC. That means they both must agree on decisions. That arrangement is fine so long as they agree on everything. It is a recipe for disaster if they don’t.

A 50-50 partnership requires 100% agreement. If partners don’t agree, the business is paralyzed and commonly the relationship is destroyed. The parties are left with some third party – a judge, an arbiter, effectively running the business, because the decision authority now rests with that third party, a party who can easily and unintentionally make bad decisions which can damage, if not destroy the business.

There are two solutions to this dilemma. First, give one-person decision-making authority. That is easily done by allocating ownership at lease 51-49. The hardest part of this approach is getting one of the people to accept the minority role.

A second approach is to provide a mediation/arbitration provision that either party can invoke. It does involve a third party, but the mediator has no authority and simply tries to get the parties to agree. The arbitrator is different, as he/she decides and their decision is generally final. The benefit of the mediation/arbitration approach is the parties get to select the Mediator/Arbitrator. There are procedures set out in the American Arbitration Association (AAA) rules for mediation and arbitration that are commonly followed.

One of the benefits of the mediation/arbitration process is that it has a great tendency to force the parties to reach agreements amongst themselves. The parties don’t want to effectively turn their business over to a stranger, who knows nothing about it.

A third option, we call the “nuclear option” is a “put or call” agreement, whereby one party offers to buy out the other party or sell to the other party, for a fixed priced. The other party must buy or sell for the fixed price.

So, the lesson from this: don’t enter a 50-50 agreement or create a structure to resolve disputes. Otherwise, you have turned your company over to some unknown party.

Experienced Colorado Real Estate Attorney

When it comes to real estate law in Colorado, there is a variety of issues that can pertain to this specialized practice. It’s important to understand the complexities of real estate and property law, and as with any legal matter, proper representation makes all the difference in achieving a desired outcome. Whether you are an individual selling a property, a landlord needing a lease agreement, or a real estate development company with zoning disputes, Ted Bendelow of Bendelow Law Office LLC has been providing his expertise in Boulder, Longmont, Denver and throughout Northern Colorado with proven success.

The diversity and complex nature of real estate and property law requires extensive knowledge and experience. From title services to construction claims, or insurance-related claims to property management contracts, Ted Bendelow of Bendelow Law Office LLC is a dedicated and trusted real estate attorney who has been practicing law for decades.

Colorado Attorney Ted Bendelow specializes in:

Title Services: We work with title companies to secure reports, address policies, and review and confirm title status.

Real Estate Development: We assist the client with applications pertaining to property development. This includes addressing concerns that might arise from government agencies and neighborhood groups. We also negotiate conflict resolutions.

Homeowners Associations: Bendelow Law Office LLC works with developers to establish planned communities and assist with disputes that might occur between the association and its members.

Construction and Mechanics Lien Claims: Ted Bendelow has extensive knowledge of the construction process. If you need help filing a lien, or need to start the foreclosure process, our law office can assist you with issues that may arise throughout the various phases of construction. We also represent contractors and subcontractors in the many elements of construction, from contract negotiation to dispute resolution to litigation; from $10,000 contracts to $32,000,000 litigation.  We have seen it all.

Other Real Estate Matters: Leases preparation, boundary disputes, selling and buying of real estate, insurance issues, and inspection problems are just a few of the other areas of real estate services that Bendelow Law Office LLC covers.

If you live in Longmont, Boulder, Denver, or Northern Colorado and need an experienced real estate attorney for your real estate transactions, contact the trusted team at Bendelow Law Office LLC.

Starting a New Business

Starting a new business is actually quite simple: get an employer identification number (EIN) from the Internal Revenue Service. In some industries you also need to get a business license, for example for sales tax purposes. Some businesses have further licensure obligation(s), with some licensure state required (realtor) and some locally required (Contractor).

You don’t need to form a corporation or do anything else. You are in business!

Is this a wise approach: no. There are several other steps a prudent business follows:

  1. Get a bookkeeper or accountant to set up a chart of accounts;
  2. Determine the business form you want to be: a sole proprietor; a partnership; a C Corporation; an S Corporation; an LLC; or some combination.
  3. Prepare the necessary paperwork to create the entity. This will involve addressing a variety of issues depending on the type of business (e.g. Manufacturing vs. retail), the market (local, national, international); the number of owners (one, many); the capital requirements and contributions; buy-sell restrictions, etc.
  4. Determine the name of your business. This has two reasons: (a) branding, your image is reflected by the name your use. It is generally the name forever so a lot of thought should go into the decision; (b) availability, folks commonly come up with a great name, only to find someone is already using it. There are several ways to determine availability. The first is the Colorado Secretary of State website. Search for the name you want and see if it is available. As a side note, the Secretary of State has a lot of useful information. A national search is also available for out of state use.

There is a very common misconception by owners: if they form a corporation or LLC, their personal assets will be protected in the event the entity and they are sued.

That position is only partially correct. In a breach of contract matter, the entity generally does protect the individual. However, that is NOT true in the case of tort (e.g. Personal injury). The owner can be personally liable if it is shown he/she was negligent.

So, if you are considering forming a business, we can help in determining what approach is appropriate and help forming and answering the myriad of questions which arise.

OIL AND GAS

Opportunity

Many folks have benefited from the expansion of oil and gas exploration and development in Northern Colorado. There are several elements to this opportunity that need to be understood.

Mineral Interests

Ownership of land does not necessarily mean the landowner owns all the subsurface rights. A determination of the subsurface or mineral interests must be made. It is very common for a prior owner to reserve (retain) the mineral interests or some portion when the property was sold. Those interests remain and can be through several or more ownerships ago. Thus, the first things to be determined is the mineral interests that are available to the current owner. This is always done by the Oil and Gas company when they are interested in a particular property.

The Landowner should conduct their own investigation through the title insurance policy they received when they bought the property. It will reveal the existence of any mineral interest which were reserved and not conveyed by a prior owner.

Royalties or Sale

Once it is determined the owner has mineral interests, the negotiations commonly begin with an oil and gas company. The more showing of interest by an Oil and Gas Company or “flippers” (Companies that buy the interest then later sell it, with no interest in actually drilling), suggests there is oil and gas activity in the area. Depending on the activity, there can be multiple solicitations from a variety of companies seeking to acquire the mineral interests.

The interest can take two forms: royalties or sale. Royalty commonly consist of an upfront number and a percentage of drilling income. The actual amount is very negotiable, and owners should consult with neighbors/nearby landowners and others to learn the current royalties.

A more common practice is for an oil and gas company (not necessarily the drilling company) to purchase the owners oil and gas interests. This in turn has two variations: certain land owners have royalty interests. Oil and gas companies purchase the royalty interest from the owner and in turn then receive the royalty payment from the drilling oil and gas company. This is very common, and the mineral interest purchase price can vary as much as $500-20,000 per acre.

Some folk really like this approach because they can get a large upfront payment, rather than a payment (although potentially larger) over time. Obviously, the oil and gas companies believe they will receive a greater return over time, hence their interest.

Another situation is when there is no royalty agreement and no drilling activity in the area. This presents more of a risk to the oil and gas companies or flippers, and the price are generally lower.

A variance on the royalty/sale scenario is a partial sale, whereby the owner retains a portion of the royalties and sells a portion. Some risk (royalties), but some certainty (partial sale).

Price is the major unknown in these negotiations. “Shopping the deal” is an opportunity, given the enormous amount of drilling activity in the area. Drilling companies don’t want other companies to know what they are paying, but prices have become common knowledge.

We can help folks through this minefield hopefully to benefit from opportunities that have only really appeared in the last 5-10 years.

Longmont Attorney Ted Bendelow General Counsel

General Counsel.  I get asked all the time, what does that mean?  I describe it as a cross between traffic cop, family physician and paramedic.  I represented a major auto racing organization, with 50,000 members, for 25 years.  I have represented a motorcycle racing organization with 5,000 members for over 20 years, since its formation.  I represent a Korean high tech company in its US operations.  I have represented a variety of construction companies, small manufacturers, limited liability companies and sole proprietors.  In short, pretty much every type of entity.

What do I do?  You name it.  From contract to complex litigation.  From insurance coverage to trademarks (one client owned over 50 registered trademarks).  I have litigated cases in Florida, New York, Texas, Minnesota, California and Colorado.  I have handled negotiations that went on for days with some of the major figures in American industry.  I have been involved in deals in the beginning, in the middle when I took over from someone else or, too commonly, at the end when problems have arisen and there is panic in the air.  What do we do!?

But, that’s the fun and the challenge.  Identify the problem, find a solution.  Generally negotiations work but the variety of courts listed suggests, not always.  Sometimes the “traffic cop” requires finding a varieties of experts or attorney specialists and pointing them in the right direction; monitoring their efforts and their billings but hopefully not “herding cats”, though sometimes it feels like that.

Colorado Ditch Company Water Supply Law

A recent effort of Bendelow Law Office was to successfully simplify the operations of a mutual ditch company that supplies water to numerous Front Range farmers and a few subdivisions. A history of Colorado is incomplete without an understanding of the role of ditch companies in development of Colorado agriculture and indeed, the growth of Colorado cities and towns. As a semi-arid climate, there is simply insufficient rainfall to support the agriculture necessary to feed our citizens. That water need is met by an elaborate serpentine ditch system with brings water from the mountains to the Front Range. In Boulder County alone, one author suggests there are over 150 ditch companies.

Most of the ditch companies were formed many years ago, with water rights established in the late 1800’s. The companies commonly have corporate documents as old as their water rights. The growth of the Front Range has obviously brought great change and complexity both in uses of the land and relationship with adjoining parties. Contracts, responsibilities and government requirements have changed.

In summary, they needed to change. In this example, we were able to merge three companies into one. Contracts and obligation that have existed between the companies since 1904 were addressed. Multiple reporting and tax obligation were addressed. In this age of increased complexity, we were able to simplify.

Sewer Plant Construction Law Colorado

Bendelow Law Office recently represented a local municipality in Colorado on a four year battle with a developer over construction of a new sewer plant.  The developer wanted to prohibit construction of the facility so it could control development.  The Colorado town (left unnamed here for legal reasons), was facing regulatory penalties over an aged and non-compliant facility, sought to control its future in providing municipal services.  Through multiple judicial forums and administrative proceedings, we fought with court hearings, briefs and experts.  In the end, the plant was built and is operating as designed, in full compliance with all health and regulatory requirements.  Meanwhile, several members of the development group have asked to connect to the new facility.

Here, a win-win situation wasn’t possible, but the local Colorado town municipality overcame enormous opposition, not from the community, but from a development group who perceived its interests as different from the town.  I believe the opposition was misguided and not in its own long range economic best interest, but they certainly have the right to their own opinions and decisions.  Presented with the need to defend the town, I did so.  If we couldn’t negotiate, I was successfully able to litigate.

Small Business Development in Longmont

I represented a small manufacturer that was interested in opening a facility in Longmont.  On the other hand the community was obviously interested in providing local Longmont employment.  Local jobs build a stronger community; keep wealth closer to home with local purchases helping other businesses.  The community as a whole gains the taxes paid, both property and sales.  In short, it is a win-win for everyone.

The task is always to find the middle ground between incentives available from the community and incentives sought by the manufacturer.

Numerous communities, small, medium and large, are competing for primary employers.  On the other hand these communities need to make reasoned decisions about the incentives they can provide.

My goal was to find that middle ground and mold it into an agreement that was acceptable to all concerned.  I am not a contractor, or an economist, or a planner.  What I was able to do was assemble the necessary resources and with their input, forge a reasonable compromise.

I am pleased to report that we succeeded.  The community and the manufacturer reached an agreement, property was purchased and the stage was set for construction.  Now we have to wait for the economy to turn around so the building can be built, people hired and plans turned into reality.

Renters: Protect Your Security Deposit

Just before ski season each year, a shuffle ensues. Most of us are familiar with this ritual. It generally consists of the frantic search for housing, schlepping one’s personal belongings around town, leaving old roommates, and learning the habits and moods of new ones. Frequently, the shuffle’s aftermath confronts residential landlords and tenants with the following security deposit issues.

How long can a landlord withhold a security deposit?
A landlord has until 30 days after expiration or termination of the lease to return a security deposit or provide a written accounting of any withholding, unless the lease provides for more time. In no case may a landlord hold a security deposit for more than 60 days without reason.

What must a landlord do to keep all or a portion of a security deposit?
If a landlord plans to keep all or a portion of a security deposit, he or she must give written notice to the tenant within the 30 to 60 day time period after lease termination. The landlord is only responsible for sending notice to a tenant’s last known address. Thus, former tenants should notify their former landlords of address changes. The notice must list the exact reasons for retaining any amount of the security deposit and must be accompanied with a refund of any amount of the deposit not being retained. If such notice is not given, the landlord forfeits any right to the security deposit.

For what kinds of damage can a landlord deduct from a security deposit?
A landlord may only withhold for nonpayment of rent, abandonment of the premises, nonpayment of utility charges, repair work or cleaning contracted for by the tenant, and damages exceeding normal wear and tear. What is “normal wear and tear” is not described in the Security Deposit Act and is one of the grayer areas of landlord tenant law. Generally, damage caused by a tenant to something which would not have otherwise deteriorated or would not have fallen into disrepair during the term of the lease, if the premises had been occupied by a reasonably prudent tenant and in compliance with the lease, exceeds normal wear and tear.

What can a tenant do if their landlord wrongfully withholds their security deposit?
Victims of wrongful withholdings may be vindicated in small claims court. Wrongful withholding of a security deposit occurs when a landlord retains a deposit in bad faith. Deliberate improper withholding is considered bad faith. A landlord who keeps all or a portion of a deposit in bad faith may be held liable for the tenant’s attorney’s fees, costs and “treble” damages (three times the amount of the security deposit wrongfully withheld). Prior to calculating treble damages, however, a court will generally offset the amount of damages to the premises caused by the tenant. In many cases, the cost (including time and effort) of recovering a wrongfully withheld security deposit exceeds the amount recovered.

What can be done to help prevent disputes over security deposits?
A lease should fairly and comprehensively address the expectations of the parties concerning the condition of the premises upon lease expiration and/or termination. Further prevention may take the form of a written inventory and photographic record of any defects or damages existing when the tenant moves in. The tenant and landlord should both sign off on such list.

As always, readers must understand that this column is not intended as advice. The purpose of this article is merely to explain general mechanics of the Security Deposit Act. Each lease situation presents a different set of facts to take under consideration.