HomeMy WebLinkAbout2012-18 Approving the Employment of Rothgerber Johnson adn Lyons LLP as Special CounselRESOLUTION NO. 18
Series of 2012
A RESOLUTION APPROVING THE EMPLOYMENT OF ROTHGERBER JOHNSON
& LYONS LLP AS SPECIAL COUNSEL; AND SETTING FORTH DETAILS IN
REGARD THERETO.
WHEREAS, the Town of Vail (the "Town"), in the County of Eagle and State of
Colorado is a home rule municipal corporation duly organized and existing under the laws of
Colorado and the Town Charter (the "Charter");
WHEREAS, the Vail Town Council (the "Council") is authorized by Section
1-6G1 of the Town Code to employ special counsel to serve under the direction of the Town
Attorney;
WHEREAS, the Council desires to employ Rothgerber Johnson & Lyons, LLP
("RJ&L") to serve as special counsel for the Town pursuant to Section 1-6G1 of the Town
Code;
WHEREAS, a proposed form of contingent fee agreement for legal services (the
"Agreement") between the Town and RJ&L has been prepared, a copy of which is marked
Exhibit "A", attached hereto and incorporated herein by reference; and
WHEREAS, the Council has reviewed the Agreement, and finds and determines
that it should be approved.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF VAIL, COLORADO, as follows:
Section 1. The Agreement between the Town and Rothgerber Johnson & Lyons, LLP
(Exhibit "A" hereto) is approved; and the Town Manager is authorized, empowered, and
directed to execute the Agreement for and on behalf of the Town of Vail. Minor
changes to or amendments of the Agreement may be made by the Town Manager if the Town
Attorney certifies in writing that the proposed changes or amendments do not substantially affect
the essential elements of the Agreement.
Section 2. This resolution shall take effect immediately upon its passage.
INTRODUCED, PASSED AND ADOPTED at a regular meeting of the Town Council of
the Town of Vail held this 17`" day of April, 2012.
Andrew P. Daly
�reJki Donaldson,
own Clerk
Resolution No. 18, Series of 2012
of the Town of Vail, Colorado
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Exhibit A
{00967100 / 1 }
Thc�mxs M. Rogers Iil
Attomcv at La�u
303.628.>506
trogers("�itrothgerber.com
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ROTHGERBER
JOHNSON �
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LYONS LLP
Uenver • Colorado Springs • Casper
March 15, 2012
Ouc T��bor Ccnter, Suite 3000
1200 Scvcnteenth Street
Uenver, Colorado 80202-58�5
'1'elephone 303.(i239000
Paz 3Q3.623.9222
�v�v���. rothgcrbcr. com
TIIIS IS A CONFIllGN'1'IAL ANll YNIVILEGI;D ATTORNF.Y-CI.ICNT COMMLINICATION.
V1A HAND D}1t,NERY
Stan Zemler, Town Manager
7S South Frontage Road
Vail, Calorado 81657
Re: Contingent Fee Agreement for Lcgal Scrvices
Dcar Mr. 'Lcmler:
We a��e pleased t�� welcome thz Town of Vail as a client of Rothgerber Johnson & I,yoris
LLP (the "T�irm"). We ap}�Y•eciati; the opportunity to szrve as the Town's legal counsel in
comlcction with thc mattcr identified below. '1'his letter dc;scribes the terms of our engagcment
(the "Agreement"). This is an important, binding le�al document so plcase rcad it carefully.
1. Scape of Cn�a�ement. We have been cngagcd to rcpresent the. 'I�o��ln of Vail
("1'own") solely in connec�ion with the Town's claims against various on-line travel comp��nics
(the "OTCs"} arisinb out of the OTC's sale of tempor�try, overnight lc�dging within the Town and
subsequent failure to pay lodging tax and sales tax to the Town as re��uit•ed by law. We havc
agr�;cd that our engagement is limited to performance of services related to this matter, including
rcprescnting thc "I'o���n in a pcnding lawsuit against thc 01'Cs. Our acccptance of this
en�a�ement does not involve an u�idertaking to represent tlie Town or its interests in any other
niattei•. We may agree to limit or expand tl�e scope o(�ou�- representation fi•om tinle to time,
provided that thc 'Town agrces to such change and we confirm any such chanbe in �vritin�.
2. Our 1Zepresentation. Othcr Colorado municipalities have or may bccome clients
of our 1'irm in connection witl� claims a�ainst the OTCs similar to the Town's. Please understaila
tliat this representation �vill be joint, me�ning that the Town will not be the only client of this
Firm in our pursuit of claiins against the O"I'Cs. "T'he Town and other Colorado municipalities
that retain the Firm to represent ihem ir� connection wit11 their claims against the OTCs for
unpaicl lodging taxes will be refcrred to hercin collcctively as our "Clicnts."
20b359G020_I
ROTHGFRBLP. JO[INSON � LYONS LLP
Mr. Stan "Lemlcr
March 15, 2012
Page 2
Based on our work with the Towri and other Clients respectively, we may recommend
that we prosccute the claims ol�tl�e Town or any other Client on an individual basis. At tl�is time
we are pursuin� the claims of all Clients, includitlg the Town, through the filing of a class action
lawsuit currently pending against the O'1'Cs in Summit County, Colorado.
Mike. Plachy, J��y Woller and I will be the attorneys primarily responsiblc for the pursuit
of the Town's claims a�ainst the OTCs. Other attorneys and stalf at our firm will also work on
this mattcr.
3. Town's Res»onsibilities. The serviccs we will provi�ic pursuant to this
Agreement will be on a contingency t�ee basis, whic}1 is n�oi•e tixll�� discussed below. If we
recover from the OTCs on the Town's claims, tllrough settle�i�ent, judgment or order of a court,
the 1'own will be responsible for payment of our attorney fees, as ���cll as thc reasonable costs
and expenses incurrcd during the time we provide legal services described in this Agreement,
such as }�hotocopy charges, legal research expcnses, court cosls, court reparter i'ees, travel
expenses, witness fees �nd similar expenses. Such expenscs and cosis will be deducted [rom any
t•ecovery obtained in the caurse of our repi�esentation.
The Town agrees to be candid and cooperative with us and to kcep us in{ormed with
complete and accurate factual ini��rniation, documents and other communic�tions relevant to the
subject matter of our representation and otherwisc rcasoilably requested by us. In ��articular, the
'1'own will make every ei�f��rt to provide a representative to attcnd trials, hcarings, dcpositions,
and otller procecdin�s, and to commit the appropriate time and resources to meet the Town's
discovery obligations.
Because it is imporcant that we be able ta contaci the Town at all times in order ta consult
with representaCives of the Town regarding this rcpresentation, the "1'own will promptly iY�form us
of any ch�ulges in relevant eontact i�lformation, inclu�ii�g relevant mail and e-mail addresses and
phone i�umbers. Whencver we need instructions or auihoriration in order to proceed with legal
work on the Town's hehalf, we will contact the appropriatr 'l�own rcpresentatives at thc latcst
addres5 and phone number ihat we have received.
�l. Contin�encv Fee A�reement. This matter is bein� handled on a contingenc,y tee
basis. 'I'he "1'own. tllrough its authorired agent, must review and 5ign the Disclosut•e Statetnent, a
copy of which is attachcd as �xhibit A anci incoiporatcd by rcfcrcncc, which is rcquircd by
Colorado law. The for�Yl of the Final Disbursement Statement th�t will set forth the fees lhe Pirm
ea►ns pursuani to the a�ree�l�ent is attached herelo as Fxhibit F3.
'fhe contingency upon ���hich compensaiion is to be paid, il�an_y, is thc 'l�o���n's rccovery of
funds or other thing ot� vafue (by the filing of a laws�iit, scttl�mcnt, ucgotiation or any other
means) from the O"1'Cs based on their failure to pay thc '1'own exi;ise or sdles tax on lodging or
accummc>dations as required by law.
2003�96020 1
ROTHG�RBL'12 JQ�INSON ��i LYONS LLP
Mr. Stan "Lemler
March 15, 2012
Page 3
The Firm has filed a class action lawsuit on behalf of�Breckenridge, Colorado and other
home-rule municipalities similarly situated. 'I'he 'T'own is anticipatecl to be a mernber oI� that
class. In a class action lawsuit, the cot.u-t will sct the amount of any fees and costs the Firni will
be entitled to recover. Nonetheless, the T'o���n agrees that tlie fees and costs it has agreed to pay
hereunder and as described further below are reasonable and may be relied upon by an�� court in
determining the Firm's fees and costs.
"1'hcre may be circumstances wherc the Co�u�t docs not set the amount of any fees and
costs that the Fir•m may recover; for eYample, if a class actio�i is not certified. If the Court does
not set the amount of the Pirm's fees and costs and il�the Town recovers fi•om the 07"Cs as a
result of the iiling of a la«�suit, settletnent, or ncgotiation, thc "l�own agrccs to pay the Finn 30%
of the Town's Net Amount of Recovery, �►s deiined below. If recovery is not made on any of the
Town's claims, the "Town will noi be respansible lor the payment of any auorneys' (ees,
contingcnt or otherwisc, or costs exccpt as �rovidcd bclow. 'l�hc Firm shall be cntitled to a
contingency fee on any recovery from the OTCs for unpaid taxes for any period of time that is
the subject of the lawsuit or the resolution thereof (whieh shall expressly include any funds paid
by the OTCs in exchange for an abcyance in future periods}; convcrscly, no contingency fee
shall be owed for the recuvery of taxes for any period of time tl�at is not the subject oi'the lawsuit
or the resolution thereof.
A. "Towri',s Gross A�noa�nt of Recovery" or "To�vn'.s CrYOS,s A�riount" is defined as the
toial recovel•y of funds by or o�� bellal�(�oi"[�own (da►7iages including but not limitcd to pcnaltics,
punitive damages, treble damages, pre-judgm�nt interest, post-judgmcnt interest, and court-
awarded attorneys' fees and costs), bcforc paymcnt of costs, expenses, and other disbursements
for which Town is responsible. The Town's Grass Atnount collected includes any cosls or
attoineys' fces awarded to and reccived by the '1'own.
I3. ""1'otii�st's Net Amotrnt of�Recovery" or "1 o�vn's Net �rnoz�nt" is defined as the
Tow71's Gross Amount minus costs, expenses, and other disbursements, advanced by the Pirm,
Ior �vhich the Town is responsiblc.
5. Attornevs' Fees or Costs Awarded in To�ti�n's Favor. lf the court awards
aCtorneys' lees in the "1`own's favor in �ury amotmt, the Town agrees th�t those Cees wi f I be
includ�d in "1'own's Gross nmouiit of Recovery and thus used to pay i-ees and costs o��jed to thc
}�irm pursuant to the tern�s of this Agreement.
6. Assessment of Costs and Attornevs' Fces A�ainst Losin� Party. The "['own
understands that a cow•t rnay assess costs against thc losing party and, 1�urther, both thc "I'own and
the T�irm may be liable for thc attorneys' fees and costs of the prevailina party as a sanctian for
bringing claims without suhstalitial justification or misconduct during the litigation of the case.
lf litigation results in an award of attorneys' fees ancUor costs in favor of the opposing
party and against the To�vn, satisfaction oC such an award will bc thc responsihility of the T'own
onlv, anil will not be the r-esponsibility of�the Firm, unlcss the attonleys' fees and/or costs arc
2003596020 1
RC?THGEKBF.R JOIiNSC)N � LYONS LLP
Mr. Stan Zemler
March 15, 2012
Page 4
awarded by the court as a sanction for misconduct by the Fit-m. Any award of costs or attorneys'
fccs to the O"1'Cs, regardless of when awarded, will not aflect the contingency fee (if any) owed
by the Town under this Agreement.
7. Alternative Fee A�reements. Town has been adviscd of thc right and
opportunity lo use some other foi-�n of fec arrangcinent, such as hotn�ly rates and tixed fees, btit
has elected to proceed on the contingent fee basis set forth in this Agrcement.
$. To�vn's Resnonsibility for Costs. 'The Firrn will advance costs on behalf of thc
To���n. At this point, we reasonably anticil�ate th� total ol� the cosis to be incurred on behalf of
thc "l�own and the otl�er Clie��ts will be approximately $1(�0,000. 'l�his is only an esiimat� and not
an a�reeme�lt to a maximuin.l�hc "l�owrl is obligated to pay its share of all out-of-pocket
expenses incurred in the preparation and prescntation of �l,own's �laii»s, up to the amount of any
recovery including, but not limited to, such thin�s as: filing fees, costs of consultants, costs of
expert reports, expert witncss fccs, cc�st of obtaining records, deposition expenses, inileage,
travel expenses, investigation costs, photographic cxpenscs, copying expenses, lay wilness lees,
and computer access charges. 'l�l�e Town will not be obligated to pay any costs unless it obtains
a recovery from the OTCs. "1'he 'I�ov�m understands that this list is not exhaustive and that costs
may be incurred l:or items other than thesc cxamples. 'l�he 'l�own's share oi�these costs will be
deducted from tl�e Town's Gross Amount of Recovery and paid to t1Ze Firtn.
9. Multiple Clients and Waivcr of Confiicts. The Town acknowledges that our
Finn rcprescnts other municipalities v�°l�o are pursuing claims against the O"fCs. In re�presenting
those other municipalities, it may ncecssa�y for our liirm to take actions ��hich may have an
indirect advcrse impact on the 'Town's claims. F'or example, one of our claimants could choose
to settle ��ith the OTCs whicl� could mean that thc `I'own will not be able t�o usc; any judgment
obtained by the settling municipalities as precedent against OTCs. In other words, some of the
Clicnts may scttle and otliers may not. i3y signing below, the Town knowi�igly and voluntarily
agrees to waive any potential conflict of interest that may arise in pursuit oCclaims by our l�irm
for other ClientS. Our Fii7n will unde�rtal:e to disclose to the '1`own any circ�unstanccs we
perceive as a potential conllict of interest should those circumstances arisc. Should futurc
disagrecments or conflicts of interest arise between the To��m and other Clients, or if the
representatic�n of joint claimants becomcs advei•sely al�fected by ihe common representation,
oiher arrangements for the Town's representation may become necessary. 1�he 'Town also
understands and agrees there will be no contidences solely between the "Town and the Firm
regarding the work thc F'irm perlorms in this matter for the Town because everything may b�
shared with other Clients.
Please understand that although the Town and �ll of the othcl� Clicnts have the same type
of claitns against the O"I�Cs, each ol� the Clients has its own tax ordinance, facts and
circumstances. '1'hus, somc Clients may recover more than others in a settlement or in cottrt, and
some may recover less or nothii�g at all.
2003�96020 I
ROTFIC.EKBEK Jc�I-�NSON F3 LYONS LLP
Mr. Stan Zemler
March 15, 2012
1'agc 5
Shoulci we obtain a settlement oifer from the OTCs, it will bc communicated to the
Te�wn. At that time, the 'Cown can dccidc whether to accept the offer or not. It is possible that
some Clie�nts may accepl the offer while otliers do not. ln such a case, Cli�nts who accept an
offer will not be ablc to procecd to court. Tl�the ntimber of C1ierlts �vho do not accept an offcr
from the OTCs is small in comparison with the numher that settle, our Firm retains t�1e right to
choose not to go forward with the court case. On the othcr hand, ii� there is no seltlement� of�(er or
only a small percentage of the Cli�nts we represent choose to accept a settlement offer From the
O`I'Cs, our Firm with direction and advice from our Clients could decidc to procecd to trial on
the individual claims. Or, dcpending upon facts and circumstances learned during the
representation, the Finn with input and advicc from our Clients, could continue with a class
action casc wherein one or more of our Clients could serve as class representatives.
At present the� l,irm is not adverse to the Town in a�i1y mattcr. The �Firin re�ularly
represents clients in tax disputes with various taxing agencies, which may include the `Town. lf
►•etained, the Firm will not accept any represcntation �idverse to lhe 'l,o�vn relat:ing to excise taxes
or sales taxes on lodging or accommodations. The Firm re�luests that thc '1'own waive any
conflicts of interest that may arise, or be perceived lo arise, from the Firn�'s representation of
otller clients in t� disputes that may arise in the futurc, provided such disputes do not relate ar
pertain to e;cci�e taxes or sales taxes on lodging or accommodations.
10. Aclvice about Possible Outcomcs. E1t thc cornmcncement and during the course
of our representation, wc may express opii�ions or beliefs concerning this matter, alternative
courses of action, or results that n�ight be antici}�ated. �7y such statcinent mad� by any lawycr
of the Firm is intendcd to be an expression of opinion only, based on iilforn�ation availahle to us
at the time, and should not bc regarded as a proi»ise or guarantee.
1 1. Settlement. Depending upoti thc progress of the matter, it may be in the Towm's
best interest to aitempt io ne�otiate a settlement. Ilo���evcr, we will not make or accept any
settl�mcnt offcr without iirst conferring with the Town. Tl�e Town is solely responsible for
»>aking tinal decisions about whether or not to acccpt a scitlement o(:ler. II�a class action
setticmcnt is reached, and tJ�e Town is not a named Plaintiff in the class action, we will advise
t11e Town regardin� the settlement but the decision whether to accept� a seitlenzent will be up to
thc named Ylainti�f(s). If a class action settlement is re�ached that the Town does not agree to, the
Town may retain sepac•ate counsel to object or to opt out of�the class, the To�vn agrees that the
l�irm may continue to act as counsel for the class.
The Fin1� will assess the strengths and weaknesses of the Town's claims and wiil provide
�uidance to the To«�� regarding settlement matters. lf a sctticment c�ffer is received and the l�irm
recommends acceptance. but the 'Town fails to acccpt thc Firn�'s �uidance, the Firm, at its
discretion and in compliailce with all ethical rules govei-�ling withdrawal of counsel fronl a case,
may tcrminate its representation ol'the Town under this Agreement.
1?. �ssociate Counsel. '1'he �irm and the "1'own anticipate that the Tirm will
associate with co-counsel from other la«� firms. Compensation to any associated counsel will be
zoo3�ycozo i
Ro�rnc�Fxs��z Jot3NSON &� LYONS I.LY
Ivlr. Stan Zemler
March 15. 2012
Page 6
paid out ot�the [ees set forth herein and shall be the responsibility of the Firm, ��ot the Town.
When thc work of the Firm is refercncc;d herein, that reference shall include the �vork oP any
associated counsel. We anticipate that oi.0 associated counscl will bc thc following Gcorgia
firms: Crongeyer I,aw rii•m, P.C., F3ird Law Group, and The Finnell Fir�n.
I 3. Subro�ation. The Tov�rn has informed the Fir7n that no other persons ar entitics
have a subrogation right or lien to the amaunts the Town may recover fi•om the OTCs.
Nevertheless, if other pci•sons or entitics have a subrogation right or lien 10 the amount the To�vn
recovers, any and all subrogation rights or liens are to be paid by thc '1'own frorn the Net �lmount
of Recov�ry aft�r paying the Firm the contingent fee �nd the costs advvanced by T'irm.
14. Termination of En�a�ement. The Town may at any time terminate our services
anc� re�presentation upon written notice to tl��e Tirm. Such lermination shall not, l�owever, relie��e
the Town of its obligations to p�y for costs or cxpcnscs incurrcd on bchalf of thc '1'own through
the date ot�termination, as required by this Agreement.
If the Pirm's representation of the Town is tenninated by the Town, or the Fir7n
withdraws ior any reason other than the T'irm's determination thai the Town's claims are
meritless, frivolous, or groundless, and the "1'own subsequently recovers any money based on the
"1 ov�m's claims, the 1'o�vn Shall pay thc Firm an amount based on quantun� meruit; i.c., rcasonablc
��alue for the services the Firm has rendered not to eaceed the fcc that would have been earned by
ihe Tirm ii�the contingency described in this agY•eement had occurred.
Any dispute on the amount owed to the Firm based on quartl�tana nieruit shall be submitted
to arbitration before the Judicial Arbiter Graup, Inc. in Denver, Colorado.
We reserve the right to withdraw representatio�t at any time foi• failure to follow any
recommendations or advice we may rcnder to the Town. 1'leas� also bc adviscd that should any
conflict of interest arise in our representation of you, we may be rec�uired to withdraw our
i•epresentation and you may need to obtain new counsel. in the event that the 1�irm tcrminatcs thc
engagement, we will take such steps as are reasonably practicable to protcct tlic "I�own's interests
in this inatter at the time of termination.
15. Rctention and llisposition of' lloci�ments. At thi; '1'own's rcquest, fol(owing the
teilnination of this engagement, we will return its papers and property. The Firm will retain c�w�
own tiles pei•taining to the matter. We reserve the ri��ht to destroy or othe�-wise dispose of
documenls or other i�7aterials retaii�ed by us within a reasonablc time atte:r Ccrmination of the
c�l�agement.
l 6. Post-I:n�a�ement Matters. "1'hc "1'o��n has engagcd the Firm to provide legal
sclvices in corlllcction with a specitic matter. After completion of the nlatter, changes inay oecur
in applicable laws or r�gulations that could impact the Town's future rights and liabilities. If the
Town separately engages us airter completion of the matter to provide additional advice on issues
2003596U20 I
ROTHC�ERE3ER JUHNSON � LYC�NS LLP
NIr. Stan `Lcmlcr
March 1.5, 2012
Pa;e 7
arising trom it, the Fii�n would be pleased lo advise the Town with respect to future legal
developments.
17. Town's Representation of Undcrstandin� This A�rcemcnt. 'I�hc Town has the
right to seek separate le�al counsel (at tiie Town's expense) wit}� respect to this Agreement.
18. Execution. "1'his documcnt has been executed i�i duplicate, and by signing this
docwl�ent, both the 'Town and the Firnl ackno��vledge they have received a fully executed copy of
the document.
It is our goal to provide the Town quality le�al services in this matter on a contingency
basis. We will work hard to achieve the guals oCthis representation as sei iorth in this
Agrccmcnt. Should tlic '1'own cvcr havc any qucstio�is or conccrns about our scrvicc, wc�rk
product, billings, oi• any other aspect of our e�i�agement, I.�lease let me 1<no�w immediately so ��e
can address the situation and better res�ond to the 'Town's needs. "I'he "l'own should revi�w this
proposed Agreement carefully. lf the 1 own finds this llgrcement acccptable, please sign it. We
look forward to representing the To��n in this matter.
S incerel y,
ROTI IGERBER ,)OI INSON & LYONS LI.P
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�I'homas M. Rogcrs lll
AGREED TO AND ACC�PTI:D:
Town of Vail
Hy:
Stan Lemler, Town Man�ger
llate:
cc: Matt Mirc, Escl.
Michael D. Plachy, Esq.
Joy Allen Woller, Esq.
2003�96U2U t
C�HIBIT A
DISC�LOSURF S'I�ATEMEN"C
Tyne of Attorney Fee Agreements:
I and the Town C'ouncil of Vail (the "Council") have been inFormed and �ulderstand that there are
several types of attoriley [ee arrangements: (1) time bascd, (2) fixcd, (3) contingent, or (�j
combinations of these types of fee arrangements. "Time based" means a fee that is determined
by the amount of time involved such as so much per hour, day or �veek. "Pixed" means a fee that
is based on an agreed amount regardless ol�the time or ef(ort involved or ihe result obtained.
"Contin ��ent" means a certain agreeci percentagc or alnount that is payable only upon attaining a
recovery regardless of the time or effort in��olved. I and the Council understand that not all
attorneys ofrer all of these dif7erent types of Pee arrangemcnts, and acknowledges that the Town
of Vail (the "Town") has the right to contact other attorneys to determine if they may provide
such other fee arrangei»ents lor the 'Town's case or mattcr. Aftcr such consideration or
consultation, tlie Council has elected tlle fee arrangement set forth in the acconzpanying
contingent fee agreement.
SPecially Awar•dec! Attorncy Fces:
I and the Councii have been infonned and understand that the court or an arbitrator may
sometimes award atiorney Iees in addition to amount of recovery being claimud. 1 and the
Council understand that the fee agrcement the "I'own cnters into with thc To�vn's attorney should
contain a provision as to how any specially awarded iees �vill be accounted lor and handlcd.
F.xpenses:
I and the Council have been infonned and understancl that there may be expenses (aside from any
attorney fee) in p�ursuing the Town's claim. l;xamples of sucl� �xpenses are: iccs charged by
expert witnesses, Iees of i�lvestigators, [ees oi�court repoi•ters to takc and prepare transcripts of
dcpositions, and expenscs involved in preparin�; c�thibits. 1 and the Couneil undersCand that an
attorney is rec�uired to provide the To��m with an esiim�t�e ol� such expenses bef ore the Council
enters into an attorncy fee agreement and that th� attorncy fcc a�,recment should include a
provision as to how and when such e�cpenses will be paid. I and the Council ii►ldci•stand that the
fee agreement should lell the Ta�ti�n whelher a fce payablc frorn lhc procceds of the amount
callected on thc 'I�own's bchalf will be based on the "net" or "gross" recovery. "Net recovcry"
means thc amount remaining after expenses and dedt�ctions. "Gross recovery" mcans the total
amount of the recovery� before any deductions. T'he estiinated amount of the expenses to handle
the Town's case will be set torth in the contingent fcc agrccmcnt.
7'he Putential of Costs and Atto►•nc��'s Fees Being A�var-ded to The Orposing I'arty:
I and the Cotmcil have been informed and understand that a court or arbitrator sometimes awards
costs and attorney fees to the opposing party. 1 and the Council have been informed and
understand that should that happen in the Town's case, the To���n will be responsible to pay such
award. I and thc Council understand that the fee agreement it enters into with the Town's
attorney shc�uld provide whether an award against the �I�own will bc paid out of the proceeds of
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any amount collected on the Town's behalf. 1 and the Council also cinderstand that the agreement
should provide whether thc fee the "fown is obligated to pay tlie To�vn's attorney will bc based on
the amount of recovery before or after payment ol�the awarded costs and attorney fees to an
opposing party.
Associated Counscl:
I�nd the Council have been infoinled and Luldcrstand that the Town's attorney may sometimes
hire another attorney to assist ii1 the handling of a case. That other attorncy is called an
"associated counsel." I and the Council understand that thc attorney fee agreement should tell
tlle "1 own haw the fces of ass�ciated counsel will be handled.
Subrogation:
I and the Co�uicil have been informed and undcrstand that other persons or entities may have a
subrogation right in what the To�vn recover•s in pursuing the Town's claim. "Subro�;ation" mcans
the right to be paid back. I and the Council understand that the subrogation right may arise in
various ways such as whcn an insurer or a fedcral or state agency pays maney to or on behalf of
a claiming party like the Town in situations such as Medicare, Medicaid, ���orker's compensation,
medical/health insurance, no-fault insurance, uninsurcd/underinsured motorist insurance, and
property insurance situations. I�nd the Council understand that sometimes a hospital, physician
or an attorney will assert a"lien" (a priority ri�ht) on a claim such as the one the �I�own is
pursuing. Subro�ation ri =hls and liens need to be considered and provided for in th� te�
agreement that 1 and thc Council rcachcs with thc 1�own's attorncy. '1'he fec agrccmcnt should
te11 the Town whether the subrogation right or lien is being paid by the Town's attorney out of�
the proceeds of the recovery made on the 'l,own's behal f and whether• the iee the "('own is
obligated to pay the Tov�m's attol�ley �vill be based on the amount of recovery before or after
payment of the subrogation right or lien.
Alternative Attarney Compensation:
I and the Council have been iuformed and und�rstand that if, after enterin� into a fee agreenlent
wiih the T�wn's attorney, Council terminates the employment ot'the 'T'own's attorney or thc
'fown's attorney justifiably withdraws, the "1'own may ncvcrthelcss be obligated to pay the
"1'ov�m's attorncy for thc work done by the Town's attorney on the Town's behall'. Tlie fee
agreement should contain a provision staiing how such alternative compensation, il�any, will be
handled.
I acicnowledbe th�t I received a complele copy aPthis Disclosw•e Statement and read it this _
day of� ----- _, 2012.
Towm of Vail:
By:
Stan "Lcmlcr
lts: 1'own Manager
�asssz i
Lxr�n3i�r �3
FINAL D1SI3URSEMENT STATFMI;N'l'
Cross Recovery
$
[temization of expenses inc��rred in handlin� oi�case:
$
$
E9
'1'otal Expenses $
Ai�t�o�mt oi' }�xpenses Advanced by flttorney:
$
Amount oi� Expenses Paid by Clicnt:
$
Nct Recovery (Gross itecovcry Less Expenses Advanced
by Attorney} $
Computation of Contingent Fee:
30% of Net Recovery: $
Uisbursement to Client (Net Kecovery Less Contingent Tee) �
Rothgerber Jolinson & [,yons LLP
By signature, client ackno���ledges receipt of a copy of this disbursement
statc�ment this _ day of . , 2012.
{U09�k�3�8! I;
948358_I
Town of Vail:
By:
Stan 7emler
Its: '1'own Mana��er
,uu9�ts35s� i;
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