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Home My WebLink About202-06 RESOLUTIONRESOLUTION NO. 202-06 A RESOLUTION TO APPROVE A CONTINGENT FEE CONTRACT WITH ELLIOTT & SMITH TO REPRESENT THE CITY ON AN INTERNET HOTEL BROKER TAX REMITTANCE ISSUE WHEREAS, Don Elliott brought to the City's attention an issue of possible underpayment of HMR and sales taxes by interne hotel broker companies; and WHEREAS, a professional selection committee selected Mr. Elliott and Mr. Odom to represent the City in such matters. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS* Section 1. That the City Council of the City of Fayetteville, Arkansas hereby approves the contingent fee contract with Elliott and Smith attached as Exhibit A in which the City will only pay the law firm's fee and costs if the law firm successfully collects back taxes for the City. ,`��R,, r ER 'a te•• ( = =V0 •13 g :FAYETTEVILLE: Ge ♦ IH& ,5Nt,C%S PASSED and APPROVED this 5th day of December, 2006. APPROVED. By: DAN COODY, Mayor ATTEST: By: ar_ . SONbRA SMITH, City Clerk Don R. elliott,Jr. delliott@elliottsmithlaw.com J. Timothy Smith tsmith@elliottsmithlaw.com ELLIOTT & SMITH, P.A. Attorneys at Law 1200 E Joyce Blvd., Suite 4A Lindsey Building Fayetteville, AR 72703 Mailing Address: P.O. Box 9090 Fayetteville, AR 72703 ATTORNEY-CLIENT AGREEMENT 479-587-8423 Fax: 479-575-0039 The City of Fayetteville retains the firm of Elliott & Smith, P.A. of Fayetteville, Arkansas to represent the City of Fayetteville in a claim against: Hotels.com,:L.P.; Hotels.conl GP, LLC; Hotwire, Inc ; Cheap Tickets, Inc.; Cendant Travel Distribution Services Group, Inc ; Expedia, Inc ; Internetwork Publishing Corp. d/b/a Lodging.com; Lowest Fare.com, Inc.; Maupintour Holding; LLC; Orbitz, Inc; Orbitz - LLC; Pnceline com, Inc.; Site 59.com.LLC; Travelocity.com, Inc: Travelocity.com, LP; Travelweb LLC; Travelnow.com, Inc.; and any insurance company representing the defendants for: Unjust Enrichment in violation of the City of Fayetteville's Transit Occupancy Tax Ordinance and Sales and Use Tax as a result of an event that occurred in 2004 2005 & 2006, and hereby give the attorneys the exclusive right to take all legal steps necessary to pursue the claim. NO COMPROMISE OR SETTLEMENT OF THE CLAIM SHALL.. BE MADE BY ATTORNEYS WITHOUT THE KNOWLEDGE AND CONSENT OF THE CITY OF FAYETTEVILLE. In consideration of the services rendered by my attorneys, the City attorneys, as their compensation, the following: 33 1/3 % of all sums recovered from said claim whether recovery other manner. of Fayetteville agrees to pay the be by suit, settlement, or in any IF NO RECOVERY IS MADE, the City of Fayetteville will not be responsible for any attorney fee or litigation expenses. Further the attorney's will advance all expenses in the case such as court costs, expert fees and deposition expenses. The City of Fayetteville agrees to reimburse those expenses out of the City of Fayetteville's portion of any settlement or judgment only in the event of a recovery. The City of Fayetteville agrees to serve as a class representative on behalf of all cities in the'State of Arkansas. In the event -the case is certified as a class action and the class obtains a recovery, it is understood that the Court will determine and authorize the award of attorney's fees to be paid by the class members. In no event will the fees to be paid by the City of Fayetteville or its share of the fees exceed 33 1/3 of the recovery to the City of Fayetteville, plus the expenses allocated to the City of Fayetteville. It is hereby understood, agreed and acknowledged that there will be a sharing of attorney fees by and between the law firms of Elliott & Smith, P.A. and Thomas Thrash Law Firm, Barrett Law Office P.A. and Murray & Murray Co L P A and further that the lawfirms of Thomas Thrash Law Firm, Barrett Law Office, P.A., and Murray & Murray Co., L.P.A. assume joint responsibility with the law firm of Elliott & Smith for the performance of legal services. mo EXECUTED at Fayetteville, Arkansas, this 57'4 day of iatelpikt,2006, ELLIOTT & SMITH CITY OF FAYETTEVILLE 'CITY ATTORNEY AGENDA REQUEST FOR: COUNCIL MEETING OF DECEMBER 5, 2006 FROM: KIT WILLIAMS, CITY ATTORNEY ORDINANCE OR RESOLUTION TITLE AND SUBJECT: A RESOLUTION TO APPROVE A CONTINGENT FEE CONTRACT WITH ELLIOTT & SMITH TO REPRESENT THE CITY ON AN INTERNET HOTEL BROKER TAX REMITTANCE ISSUE APPROVEDOR AGENDA: l �rt A ornney !S -o Date Gary Du as Date '70..9 Q. 441-- 11- 15 -or. Paul Becker Date FAYETTEVILLE THE CITY OF FAYETTEVILLE, ARKANSAS KIT WILLIAMS, CITY ATTORNEY DAVID WHITAKER, ASST CITY ATTORNEY DEPARTMENTAL CORRESPONDENCE LEGAL DEPARTMENT TO: Dan Coody, Mayor City Council FROM: Kit Williams, City Attorne DATE: November 15, 2006 RE- Class Action Suit To Recover City Taxes r Attorneys Conrad Odom and Don Elliott were selected by a Professional Selection Committee to represent the City in possible litigation against Internet hotel room brokers (such as Hotels.com, Expedia.com; Travelocity.com; etc.) which may not have fully paid city sales and use taxes and HMR taxes when selling local hotel rooms. Attached is a contract from Don Elliott's new firm, Elliott & Smith. Conrad Odom and Don Elliott have severed the old firm of Odom and Elliott and Conrad has agreed to allow Don to handle this litigation. The attached contract is a pure contingent fee so that the City will owe Elliott & Smith nothing unless they are successful and recover unpaid, but due, taxes. If they do win, they are entitled to one-third contingent fee, plus reimbursement for costs. If this becomes a class action, the court will determine and authorize fees which will still not exceed one-third of the recovery, plus costs. I recommend you approve this contract so Don Elliott can enter into this litigation and determine whether the City of Fayetteville should receive tax revenue from these internet hotel room brokers. • RESOLUTION NO. A RESOLUTION TO APPROVE A CONTINGENT FEE CONTRACT WITH ELLIOTT & SMITH TO REPRESENT THE CITY ON AN INTERNET HOTEL BROKER TAX REMITTANCE ISSUE WHEREAS, Don Elliott brought to the City's attention an issue of possible underpayment of HMR and sales taxes by internet hotel broker companies; and WHEREAS, a professional selection committee selected Mr. Elliott and Mr. Odom to represent the City in such matters. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves the contingent fee contract with Elliott and Smith attached as Exhibit A in which the City will only pay the law firm's fee and costs if the law firm successfully collects back taxes for the City. PASSED and APPROVED this 5th day of December, 2006. ATTEST: • By: SONDRA SMITH, City Clerk APPROVED: By: DAN COODY, Mayor NOV-15-06 WED 04:47 PM MFMRL•RS OF TFIE FIRM RODDY LEE ODOM RUSSELL D. W(NDURN CONRAI)?. DIXIE.; AI AN 1- LANE MATT I IEW 1,LINDSAY Va..1_Facsimile 575-8215 Kit Williams Ke: Contract Dear Kit: FAX NO. ODOM LAW FIRM, RA. nl f6RNEMS ATIAW MAILINGAODR13S P.O. DMWER 1868 FAYETTEVII.LE, AR 72702 STREET ADDRESS I E. MOUNTAIN FAYETTEV ILLE, AR 77701 November 15, 2006 P. 02 (479)112-7575 FAX (479) 162.008 JFFFERY J. DDFN AUM MI!1G70R -w.mlmulilm.mm I wanted to let you know that I have visited with Don Elliott about the contract to be entered into with the City. As you know, our law fiims have parted ways, However, we continue to work very amicably with Don Elliott and Tim Smith Don and 1 have worked out our agreement and therefore please feel free to work directly with Don Elliott on the terms of the contract. It is not necessary that I approve or sign any documents on this law firm's behalf as we will work directly with Don in this matter to simplify things. Let inc know if you have any questions. Sincerely, Conrad'1'. Odom G"1'O/amr Cc: Don Elliott (yia Faimile 575-0030) 12., ►... V2.12.06), Clarice Pearman - Res. 202-06 Page 1 From: To: Date: Subject: Attachments: Clarice Pearman Williams, Kit 12.12.06 3:28 PM Res. 202-06 202-06 Elliot & Smith.pdf CC: Audit • Kit: Attached is a copy of the above resolution passed by City Council, December 5, 2006 regarding Elliot & Smith contingent fee agreement. Let me know if anything else is needed. Thanks. Clarice Clarice 8uffalohead-Pearman, CMC City Clerk/Treasurer Division 113 West Mountain Fayetteville, AR 72701 479-575-8309 cpearman@cilayetteville.ar.us •