10-05-2010 Engagement letter TOA and Blank Rome LLPB L A N K R 0 M E iv
4 (J)LINSE AT LAW
Phone: (2 12) 885 -5259
Fax: (917) 332-3730
F"IfIll: JKimball(telBlank Rome. con;
October 5, 2010
13y Email
Town of Avon
c/o Dean Heizer, Esq.
licizer Paul LLP
2401 15 Street, Suite 300
Denver, CO 80202
tic: Town of Avon
Dear Sirs /Madams:
We look forward to assisting you In this matter. We are pleased that you have retained its
to assist in your lawsuit against various entities controlled by Mr. Magnus Lindholm, including
Traer Creek Metropolitan District, Traer Creek LLC, Traer Creek -RP LLC, Traer Creek Plaza
LLC, 1 Limited Liability Company, Traer Creck-I 11) LLC, and Traer Creek-WMT LLC.
The terms of this engagement letter and the attached Addendum will govern our
representation of you. Upon the completion of our services with respect to this matter or
transaction, we hope that you will choose to engage Our firm to perform additional services for
you. Absent an express written agreement to the contrary, the terms of our engagement set forth
in this letter and the Addendum will apply to this matter and to other matter,-, which we agree to
undertake on your behalf, The terms of this engagement as provided in this letter and Addendum
may only be modified in writing C , signed by a partner of our firm.
Unless otherwise agreed with Lis in writing, our fees will be based on the time devoted to
this matter by cacti attorney, law clerk, reference librarian, paralegal and other legal assistants at
their respective hourly rates in effect at the time the services are performed. The hourly rates,
which are subject to periodic review and adjustment, are based on such considerations as the skill
requisite to perform the particular set property, the likelihood that the acceptance of the
particular employment will preclude other employment by the firm or the lawyers in question,
the experience, reputation and ability of the lawyers performing the services, and whether, in the
event conflicts arise or have arisen, consents necessary to permit our firm to accept other
engagements have been provided by you as requested. The matter will be supervised by John D.
Kimball, whose hourly billing rate for this matter is $725. The current hourly rates for other firm
personnel range from $440 to $855 for partners, $260 to $525 for associates, $285 for Lescene
Gibbons and $150 to $305 for paralegals, clerks and librarians.
[he (hryrivr Building 405 1 ming!ori Avenue New York, NY 10174 0208
wvvw BlenkRomr corn
900200.000()1/0956177v. I
(Ato ' Dvlawam ' Florida ' Nov Rerzoy - Now Yoq - Ohio " Pvnmylvania ' Washington. X ' Hong Kong
ft ( 00FISHORS AT 1 AW
{}o10 her 5. I0\0
Page 2
We request that you provide us with an advance o[$5,000 6x the fees and the
disbursements and other charges to begin the representation. This amount will be deposited in
our general funds and abuU hccumc firm property and will not be placed in escrow: The advance
will be deposited in our general trust account to be applied to our |uoi bUUog. All other billings
rnmt be paid without considering the credit for this deposit, and when the representation is
concluded, any excess will bc returned ioyou.
Mcunn review the 1ornno[d1ix cogugeoocnt letter carefully, as well as the terms set R/db
in the attached Addendum. Ifyou have any questions about them, please give us a prompt call.
Please review the honns of this cu8uAoocnt letter carefully, as well as t terms set forth
in the attached "Addendum". Ifyou have any questions about them, please give us a prompt call.
Onhoba|[of Blank Rome [JJP,} thank you for the privilege *[rcproycnbo� you and look
forward to serving your interests. We would appreciate it if you would sign the enclosed copy of'
this letter in the space provided below and return it to us,
Very truly yours,
(�
John 1). Kimball
900200.00001/6950177« I
ADDENDUMTO NEW YORK ENGAGE MENT LETTER
The policies and practices set forth hu/ov/mpo|y to our engagement ao your counsel:
.
Unless otherw agreed |oiu writing nrwc specifically undertake such additiona
representation u1 your request, no represent only <hc client named in the cu8ugernen1 letter and
not its parents, affiliates, subsidiaries, purtnom oiu(von1urms`crnp|oyces
shareholders, members, owners, agencies, departments ordivisions. l[our engagement ialimited
Nu specific matter or transaction, and we are not engaged to represent you io other matters, our
attorney-client relationship will terminate upon the completion o[ our services with respect to
such matter nr transaction whether or not wr send you u letter 8n con Finnthe termination o[our
representation.
l[oudy rates are subject to periodic review and a6omtmcrit. Unless otherwise agreed by
Lis iu writing our fees will be based on the hourly rates iu effect u1 the time the services are
rendered.
Although we may from tinicto time for u client's convenience furnish estimates of fees
or charges that we anticipate will be incurred on m client's behalf, these estimates are subject to
unforeseen circumstances and are by their nature inexact. We will not be bound by any estimates
except as otherwise expressly agreed to by us in writing. l'udbcnnoro, unless specifically mznecd
to by us in writing, your obligation to pay out fees and costs incurred in connection with the
representation is not contingent upon our achieving any particular result.
Absent a written agreement to the contrary, each client narned in the engagement letter is
jointly and severally liable for all fees and disbursements.
D isbUrseincrits and Other Cliar�_
Bn addition 10 our fees vm will ho entitled Vo payment orreimbursement for
disbursements and other charges incurred in per6booing services such as photocopying,
mcaxun8crund delivery, overnight delivery and air boi&b1, computerized research, videotape
rcoonling. travel (including mileage, parking, air fare, lodging, meals, and ground
transportation), long distance telephone, tdccopyiuA, word processing iuspecial circumstances,
court costs, and filing D:ux. To the extent wc directly provide any o[ these services, we reserve
the right ioa the amount we charge ot any time or front time todnnu,and the charge will
approximate our cost. Uu|uax special unnoAonountm are made, fees and expenses ofconsultants
and professionals (such as experts. investigators, witnesses, and court reporters) and other large
disbursements will not ho paid by our fion and will be the responsibility of, and billed directly
to, you or you will bc asked to advance tounan estimate o/'Uhoxecosts.
900200.0000116956177v. I
Confl'cts of interest.
7tiu unavoidable that from time to time conflicts o[interen develop between oramong
our clients, or ho(wocn o|iontn, or fb/tucro|ion\a, und prospective clients we wish to ozprcncnL In
these situations, we are required. |[wcureuu<boracd kzdo so, 10 disclose the conflicts imour
clients, former clients and prospective clients and consult with them and to obtain the clients' or
fooner clients' consents before we may proceed. Wc wish NcooDnn that you agree that you will
promptly and in good Caith consider Our I-C(JUCStS for a consent.
Tcrminati
You shall have the right at any time to terminate our services and representation upon
written notice. Stich termination shall not, however, relieve you of the obligation to pay for all
services tendered and disbursements and other charges made or incurred on your behalf prior to
the date oftermination.
Wu reserve the right upon reasonable notice \ocease performing work and iowithdraw
from the representation (a) with your consent, (b) for good cause, or(c) for any other reason
permitted 6vlaw. Good cause may include your failure \ohonor the terms o[1hcengagement
letter, your failure to pay amounts billed in dnody manner, your failure to furnish deposits For
fees and costs or10 otherwise provide rcqocm(cd advance for fees and costs, or any kctor
circumstance that would, in our view, impair an effective attorney-client relationship orwould
render our continuing representation unlawful. unethical or unreasonably burdensome. f[*t
elect vodn so. you must take all steps necessary 10 free uooF any obligation 0oycrl'brno [brtbcr
including the execution ofany documents (including forms for substitution of counsel) necessary
to complete our withdrawal, and we will be entitled to be paid fbru|| services rendered and
disbursements and other charges made or incurred on your behalf prior to the date of withdrawal.
6, Record .
At the conclusion of a matter we often undertake to review the file and discard extra
copies
Storage at Our expense, unless uclient rrqncn(a us to deliver the files to it. To minimize tile Qo
storage expense. we reserve the hobL sohiec1 0o your contrary dineudoo, to retain files for only
five years and to destroy all older files to the cx(cot practicable; provided that estate p|arnniug
files and trademark and patent fi{nm are retained, and vvc use our reasonable efforts to review old
files and nztuiu original legal ioainmcniy Stich as om(cn, |ouuco, nnoUgugcs deeds, stock
curtiOoutco,nuuriia| equitable distribution agreements and other items o[obvious value. [[you
wish to handle the disposition of files In a different manner, please let us know. Otherwise, we
will proceed as set Corili above.
Ljtig,g liold/1-Irescrvation of Documents.
If this engagerrient involves our representation of you in connection with litigation or an
investigation by a governmental agency, it is important that we address the need to put in place a
4'
e0020000001/6956177v I
B | A N K R (l M E Ky 4 «»mSHORS AT. !m°
timely and effective program for preserving all relevant documents, including especially your
electronic dnouneuts and eocd|z You should immediately suspend any routine document
retention policies that may hcio effect and consult with un concerning the institution ofeffective
procedures for document preservation. Failure to do so can impair our ability 10 represent you in
this matter and can affect the outcome.
Electronic Mail and Other Communications.
In the course of our representation of you, we have a duty to preserve the confidentiality
of our communications with you and other information relating to the representation. Dowovzc
you and wo need (orecognize that u||mounuo[ooconuuruco1ion are, to some degree, susceptible
to misdirection, delay or interception. E-mmd and oc}|u|ar telephone corn nuoications present
special risks o[ inadvertent disclosure. lTnwcver, because of the countervailing speed, efficiency,
and convenience of these methods of communication, we have adopted them as part of the
nonnu} course of our operations. Unless you instruct us to the contrary, we will usoomuo that you
consent to our use o[e'mai| and oc|\ phone communications in rcprnouohog you.
9. Insurance.
You oorcu0o do0crmiuoa4 cdhoruny insurance coverage iyocmay be available with
respect W the nub ooimaUoro[thuongogcnncn1and to provide notice \oany insurer that may
provide coverage. Ifuo insurer pays any portion o four charges, you agree that you will remain
ncop000ih|e for payment o[any amounts hU|od by o« but not paid by the insurer, unless we have
agreed otherwise in writing.
)0, Notice of Obligation to Arbitrate All Disputcs
You and we each agree that any controversy, r|ujnn ur dispute ("Diypnte"), whether based
in contract, tort, common law, equity urouo statute, arising out ofurrelating to our
representation of you shall be resolved by final and binding arbitration under the JAMS
Corn prdhcnoivo Arbitration IZu|osnnd Procedures. l[ the mnuuo1io Dispute is$l8O,O00orless,
the arbitration will be conducted by o single arbitrator. [fdneunnoun{io Dispute ioin excess of
$|80.0U0, the arbitration will bc conducted bvo panel of three (3)arbitrators. The proceedings
shall take place u1a mutually convenient |ocu ion within the StatcofNow York. The orhi
is expressly authorized to award any remedy or relief available in a court of law. Any interim or
Dou| award by the urbi1ru1or(s) may hmenforced iu any court n[competent jurisdiction. This
obligation to arbitrate Disputes will be governed, interpreted and enforced under the laws ufthe
State of New York, including its laws pertaining to binding arbitration.
YOU AND \VE6AC}l ACKNOWLEDGE ll{AT]}!0 OBLIGATION TO
AKBDRAT[ ALL DISPUTES WILL RESULT )N THE WAIVER OP ANY 0UDT'll}
RESOLVE DISPUTES THROUGH A TRIAL TN COURT 5YA JUDGE OR JURY AND THE
WAIVER OF ANY KlUBTY0U MAY DAVElD RESOLVE ATTORNEY FEE DISPUTES
THROUGH NON-BINDING ARBITRATION IN AN ALTERNATIVE, FORUM UNDER
-5-
900200.00001/6956177v I
4 COW4')ILOR� Af LAW
PART l370PTR2RUlFS0F7BF, CK7FP ADMINISTRATOR ()FTBD NEW YORK
STATE (IOU R]S.
ll. Wr Advices Reo
_ �� I I ____ _ , irding Federal ' Fax Issues
Whenever we provide you with written advice concerning the Federal tax treatment of an
item of income, gain, loss, deduction or credit, [tic existence or absence of a taxable transfer of
prupody,orthovo|ucn[prvpodyfbrPodoro|taxpurpoyos,wcarcsubcdtontriugcrd
requirements imposed by "lie Ouiird !i1okslicunur9 Department onall tax practitioners,
including attorneys. These rules cover much more than [onmu| legal opinions undcouyapp|yvu
,my writing ro\udog to any /n(c,md Revenue Code rnottor including communications via e-mail
and fax, 0'wcfia8tommply with these rules, wom4;(xntler certain oircianstances
suspended or dihu/roJfi-omyroc//,e6u/o/c/he/n/o/no/8cvcnueSe/vicc. 6e publicly censured
o/'fixed (to the extent that the Secre/m prom n/�pz/cs regulations requ//'/ngu�yxuc/,
fines orpeao//�d. Thcrokvc.i[duhn8 the ooun o
course 'this engagement, wo provide written advice
regarding my arrangement the principal purpose of which is the avoidance or evasion of any tax
imposed by the loicnnui Kovoouo �Cndc, xuch writing must comply with the rigorous standard.-, of
review and disclosure (including enhanced factual and legal due diligence) which are now
required by the Treasury Depu/'UncnL l flax uroidouccin not the principal purpose o[nn
arrangement but is a xignificant purpose, our weritten advice must also adhere to the sarne rules,
unless we include prominent disclosure stating that the writing was not bn1uodcd or written by
us to be used, and it cannot be used by you or anyone else for the put of avoiding taxpayer
penalties. It is for this reason that certain written communications, <oyou, inc|odiogocnoib and
faxes. will contain the following disclosure statement: "Any Federal tax advice contained
herein is not hmhomdmd or written to be used, and cannot he used by you or any other
person, for the purpose nfavoiding any penalties that way bc imposed by the Internal
Revenue Code. This dimc)uyorc is made in accordance with the rules ofTruumory
Department Circular 230 governing standards my practice before the Internal Revenue
Service. Any written statement contained herein relating to any Federal tax transaction ur
matter may not hcuse(] by any person vvithnoi our express prior written permission to
support the promotion mr marketing oyortn recommend any Federal tax traomacdnn(v)nr
nmuttor(s) addressed herein. No advice contained herein may bu relied upon nr utilized 6v
uu�pmruooforo��pnr�ooeo�����uy���remm\ynodu00rommtivclystatedbomciovvitbmutthe
prior written consent ie each instance wym partner of this firm."
4
e00200n000-1m95e177"1