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Signed Contract_Miller & Van Eaton Coalition AgreementTHE CITY OF DUB E MEMORANDUM Masterpiece on the Mississippi Dubuque TO: Michael C. Van Milligen, City Manager All-America City FROM: Craig Nowack, Cable TV Coordinator ill ~ ' ~4 DATE: December 21, 2009 RE: Miller & Van Eaton Coalition Agreement 2UU7 INTRODUCTION The purpose of this memorandum is to request your signature on two original agreements with the law firm of Miller & Van Eaton for participation in a coalition of communities making a series of telecommunications filings in the coming months. BACKGROUND On November 16, 2009, the City Council approved spending up to $10,000 to join a coalition of communities headed by the law firm of Miller & Van Eaton to pool resources in making a series of telecommunications filings in the coming months. Attached are two original Standard Terms of Engagement that define the terms of our agreement with Miller & Van Eaton in this matter. RECOMMENDED.ACTION I respectfully request that you sign the attached agreements and return them to me. I will give one to the City Clerk's office and return the other to Miller & Van Eaton. cc: Randy Gehl, Public Information Officer Barry Lindahl, City Attorney MILLER & VAN EAT O N P. L. L. C. MATTHEW C. AMES KENNETH A. BRUNETTI* MARC[ L. FRISCHKORN GAIL A. KARISH* NICHOLAS P. MILLER MATTHEW K. SCHETTENHELM JOSEPH VAN EATON *Admitted to Practice in California Only 1155 CONNECTICUT AVENUE, N.W. SUITE 1000 WASHINGTON, D.C. 20036-4320 TELEPHONE (202) 785-0600 FAX (202) 785-1234 MILLER 8L VAN EATON, L.L.P. 580 CALIFORNIA STREET SUITE 1600 SAN FRANCISCO, CALIFORNIA 94104 TELEPHONE (415}477-3650 FAX (415) 738-2466 W W W.MILLERVANEATON. COM November 30, 2009 OF COUNSEL: LAMES R. HOBSON GERARD L. LEDERER WILLIAM R. MALONE City of Dubuque, Iowa Attn: Mr. Craig Nowack Cable TV Coordinator 1300 Main Street (City Hall Annex) Dubuque, IA 52001 ' Re: Ensal~ement of Miller & Van Eaton P L L C Dear Mr. N ack: We are pleased that the City of Dubuque ("Dubuque") has agreed to participate as a member of the FCC Broadband Coalition ("FCC Broadband Coalition" or "Coalition") which will use the legal services of Miller & Van Eaton, P.L.L.C. ("the Firm"). Consistent with our normal practice, this letter and the enclosed Standard Terms of Engagement (which is incorporated by reference) set forth the terms of our engagement. As a member of the Coalition, Dubuque agrees to provide a fixed amount of financial support of $10,000 for Miller & Van Eaton legal services. The legal services will support various local government parties appearing before the Federal Communications Commission in matters directly and indirectly related to the FCC's preparation of a National Broadband Plan, The Coalition will support activities through February, 2010. At that point, the Firm will recommend to the Coalition what further activities may be warranted and propose a budget based on the recommendation. However, Dubuque will not be obligated to provide further support beyond the commitment in this letter. Dubuque will receive regular Coalition Activity Reports and a majority of members of the Coalition may at any time direct Miller & Van Eaton actions, consistent with the purpose of the Coalition. Provided however, Miller & Van Eaton is not obligated to undertake any work for the Coalition which is valued on an hourly basis in excess of the amount of unexpended funds committed to the Coalition by Coalition members. Our fees for legal services in this matter will be based on the time we spend on the engagement. We will bill the Coalition at our discounted rates, which currently range from $175 to $340 per hour for attorneys and $95-$150 for law clerks and paralegal time. In addition, we separately charge for various expenses and other charges incurred in connection with our rendering of services, all as Miller & Van Eaton, P.r,.L.c. Page 2 described in the enclosed Standard Terms of Engagement, the terms of which are incorporated in this letter. Enclosed is an invoice in the amount of $10,000, which is Dubuque's commitment upon execution of this letter. Please remit these funds as soon as possible. Funds of Coalition members will be expended on a "first in, first out" basis, with each Coalition member receiving an itemized invoice for those specific activities paid by its contribution. The client for this engagement is the FCC Broadband Coalition. As a member of the Coalition, Dubuque may request a telephone conference of all Coalition members to direct the actioris of the Coalition. In the case of controversy or disagreement among Coalition members, majority vote will control. We do our best to see that our clients are satisfied not only with our services but also with the reasonableness of the fees charged for those services. Whenever you have any questions or comments regarding our services, or the status of the Coalition's activities, or whenever any new facts or considerations come to your attention, you should contact me or any other attorney with whom you are working. We also encourage you to inquire about any matter relating to our fee arrangements or monthly statements that are in any way unclear. We appreciate your confidence in us and the opportunity to provide legal services to the FCC Broadband Coalition. We look forward to working with you as a member of the Coalition. If you have any questions regarding this letter or our representation, please contact me. If this letter of commitment is satisfactory to the City of Dubuque, please indicate the Dubuque's concurrence by having it signed below and returning a copy of the letter to me. Very truly yours, L)[~E VA E~ O .c. By ( ~~ Nicholas P. Miller The Standard Terms of Engagement contain a binding alternative dispute resolution provision which may be enforced by the parties APPROVED AND AG/REED: DATED: ~'"~ ~ ~ , =~C~L~ ~, City of Dubuque, IA By: ... r:~:~~u ~ ~ i us9.rat>t MILLER & VAN EATON, P.L..L.C. STANDARD TERMS OF ENGAGEMENT Includes infonualion provided in accordance with the D. C Rules of Professional Conduct This statement sets forth certain standazd terms of our engagement as the FCC Broadband Coalition's lawyers and is intended as a supplement to the commitment letter that we have with you as a member of the Coalition. Unless modified in writing by mutual agreement, these terms will be an integral part of our agreement with you as reflected in the commitment letter. Therefore, we ask that you review this statement cazefully and contact us promptly if you have any questions. We suggest that you retain this statement in your file with the commitment letter. This engagement shall be subject to the D.C. Rules of Professional Conduct. The Scone of Our Work We will at all times act on your behalf to the best of our ability. Any expressions on our part concerning the outcome of your legal matters aze expressions of our best professional judgment, but aze not guarantees. Such opinions are necessarily limited by our knowledge of the facts and are based on the state of the law at the time they are expressed. It is our policy that the person or entity that we represent is the person or entity that is identified in our commitment letter. Absent an express agreement to the contrary our representation does not include any affiliates of such person or entity (e.g., if you are a corporation or partnership, the representation does not include any parents, subsidiaries, employees, officers, directors, shazeholders or partners of the corporation or partnership, or commonly owned corporations or partnerships; or if you aze a trade association, any members of the trade association). If you believe this engagement includes additional entities or persons as our clients you should inform us immediately. It is also our policy that the attorney-client relationship will be considered terminated upon our completion of any services that you have retained us to perfottn. If you later retain us to perform further or additional services, our attorney-client relationship will be revived subject to these Standard Terms of Engagement and those set forth in this letter as they may be modified by mutual agreement to fit the circumstances at that time. Who Will Provide the L AI Services Customarily, each client of the firm is served by a principal attorney contact. The principal attorney should be someone in whom you have confidence and with whom you enjoy working. You are free to request a change of principal attorney at any time. Subject to the supervisory role of the principal attorney, the Coalition's work or parks of it may be performed by other lawyers and legal assistants in the firm, Such delegation may be for the purpose of involving lawyers or legal assistants with special expertise in a given area or for the purpose of providing services on the most efficient and timely basis. How Our Fees Will Be Set Generally, our fees are based on the time spent by the lawyers and paralegal personnel who work on the matter. We will change for all time spent in representing the Coalition's interest, including, by way of illustration, telephone and office conferences with you and your representatives, consultants (if any), opposing counsel, and others; conferences among our legal and paralegal personnel; factual investigation; legal research; responding to your requests for us to provide information to your auditors in connection with reviews or audits of financial statements; drafting letters and other documents; and travel. We will keep accurate records of the time we devote to Coalition work. The hourly rates of our lawyers and legal assistants aze reviewed and generally adjusted periodically on a Firm-wide basis to reflect current levels of legal experience, changes in overhead costs, and other factors. Although we may from time to time, at the client's request, furnish estimates of legal fees and other chazges that we anticipate will be incurred, these estimates arc by their nature inexact (due to unforeseeable circumstances) and, therefore, the actual fees and chazges ultimately billed may vary from such estimates. With your advance agreement, the fees ultimately chazged may be based upon a number of factors, including: the time and effort required, the novelty and complexity of the issues presented, the value of the services to the Coalition. For certain well-defined services and special circumstances we will (if requested) quote a flat fee. In all such situations, that flat fee arrangement will be expressed in a letter, setting forth both the amount of the fee and the scope of the services to be provided. We also will, in appropriate circumstances, provide legal services on a contingent fee basis. Any contingent fee representation must be the subject of a separate and specific engagement letter. Rates and amounts specified in our commitment agreement aze net to us of state and local taxes. If your state or locality imposes sales or other excise taxes on us as non- residents for our client services to you, either through withholding or through direct assessment, then the rates and amounts specified in our commitment letter are grossed up by the amount of such taxes unless paid by you directly, so that the net amounts specified in our commitment letter are not diminished by any such tax or withholding and the amounts specified in our commitment agreement aze not diminished by any such tax or withholding. Additional Charees In addition to our fees, there will be other charges for items incident to the performance of our legal services. Generally, chazges which reflect the use of resources provided by outside vendors (courier services, court reporters, etc.) are chazged at the vendor's charge to us without mazkup. Certain other charges reflect the utilization of firm resources or involve an integral combination of firm's resources and outside vendors (photocopying, computer reseazch, etc.). These services aze chazged at standard rates which encompass both the direct vendor charge and an amount equal to the firm's estimate of an appropriate charge for the firm resources allocated to the service. While these charges may not match the firm's exact cost of providing these services in each instance, eve believe that these chazges are fair and generally comparable to the charges made by other firms for similar services. The current basis for these charges is set forth below. The Firm may review this schedule of chazges on an annual basis and adjust them to take into account changes in the Firm's costs and other factors. Computer Research: The Firm uses the LexisNexis and Westlaw computer-assisted reseazch services. Where applicable, such research is more efficient than traditional book research and permits access to a much broader range of resources than normally found in a law firm library, I-lowever, in addition to the electronic data provided by the computer reseazch services, we must provide dedicated hardware and technical support. We have entered into contracts for the electronic data with our computer reseazch services which we believe provides the lowest rates for our projected usage. The Firm chazges on antime-of--use basis for computer assisted reseazch services.. Photocopying: The Firm chazges $.25 per page. Mail: Clients are charged the actual expense to the Firm of postage for the U.S. Postal Service, as well as the actual expense of air express couriers. Overtime: Staff overtime is chazged only when required by the time constraints of the specific project. Facsimile and Electronic Scanning: The Firm chazges $1.00 per page for outgoing faxes, which includes atl telephone costs. There is no chazge for incoming faxes. The Finn charges $1.00 per page for electronic scanning of documents within the Firm. Telephone Calls: There is no charge for local calls. Long distance calls which originate at the Washington office are billed according [o the actual expense to the Firm of the call . Travel-Related Expenses: Airfaze, meals, and related travel expenses charged to the client represent actual, out-of-pocket expenses. Automobile mileage is charged at the IRS-approved rate of .55 cents per mile. Credits earned under the Frequent Flyer Programs accrue to the individual traveler and not to the Firm. Firm Messengers: There is no charge to the client for walking messenger trips made by Washington office employees. Other courier expenses are billed at the actual expense to Finn. All Other Costs: The Firm charges actual disbursements for thud-party services such as court reporters, expert witnesses, etc. Unless special arrangements are othenwise made, fees and expenses of others (such as experts, investigators, consultants and court reporters) will be the responsibility of, and billed directly to, the client. Further, all invoices in excess of $500 will be forwarded to the client for direct payment, unless other arrangements are agreed to separately. In the event that payments from you to us include advances of anticipated but unearned fees and un-incurred charges, you agree that such advances may be commingled with the firm's funds, subject to an accounting not later than upon termination of the representation. Payment Our billing rates are based on the assumption of prompt payment. Consequently, unless other arrangements are made, fees for services and other chazges will be billed monthly and are payable within thirty days of receipt. We reserve the right to charge interest after thirty days at the maximum legally permissible rate up to 1% per month or 12% per annum on amounts past due. Representation in Unrelated Matters We understand and agree that this is not an exclusive agreement, and you are free to retain any other counsel of your choosing. We recognize that we shall be disqualified from representing any other client (i) in any matter which is substantially related to our representation of the Coalition and {ii) with respect to any matter where confidential information famished to us could be used to your material disadvantage, We represent many other companies and individuals. It is possible that some of our present or future clients may have interests which conflict with the Coalition's in litigation, business transactions or other legal matters during the time that we are representing the Coalition. Subject to the requirements of the District of Columbia Rules of Professional Conduct which govem us, we may in the future consult with you about our continued representation or our undertaking of a new representation of a client in any such matter that is not substantially related to our work for the Coalition and that does not risk potential use of confidential infonmation to the Coalition's material disadvantage. The D.C. Rules of Professional Conduct deal specifically with instances where unforeseen conflicts arise between existing clients of the firrn. Termination of Commitment You may terminate our commitment with or without cause at any time on written notice to us. We will return all papers and property immediately upon termination of our commitment. We will, however, retain our own files, If you wish to make copies of our files, you or your new lawyer can arrange to make copies of all our papers that we believe are necessary to continued representation. Termination of our services will not affect your responsibility to pay for legal services rendered and all expenses and other charges incurred up to the date when we receive notice of termination, and for any further work required of us in order to facilitate an orderly turnover of matters in process at the time of termination. We may terminate our commitment for any of the reasons pennitted under the Rules of Professional Conduct which govem us, including: your failure to pay promptly our bills, misrepresentation of (or failure to disclose) any material facts, action taken contrary to our advice, or any other conduct or situation that in our judgment impairs an effective attorney-client relationship between us or presents conflicts with our professional responsibilities. Subject to the Rules of Professional Conduct which govem us, we may also terminate our commitment by reason of your failure to consent to our representation of a client in accordance with the terms of the preceding section. If required, we will request a stipulation executed by you allowing us to withdraw as attorney of record in any judicial, arbitration or similar proceedings. We may also apply for a court order approving our withdrawal from representing you, and you agree in advance to our withdrawal. Alternative Dispute Resolution• Mediation and Arbitration Should any dispute arise concerning either the services provided to the Coalition by us or our billing statements forwarded to you, you and we shall first try in good faith to settle the dispute directly. If the dispute is not resolved, it shall be submitted to voluntary third party neutral mediation in accordance with the mediation rules of the American Arbitration Association. If mediation is not successful, you and we agree to arbitrate the dispute in accordance with the Rules of the American Arbitration Association. The mediation and azbitration proceedings, including any heazings, shall be held in a mutually agreeable venue. Both you and we agee that neither of us is entitled to or shall request or claim punitive or exemplary damages. Client Documents We will maintain any documents you famish to us in our client file (or files) for this matter. At the conclusion ofthe matter {or eazlier, if appropriate), it is your obligation to advise us as to which, if any, of the documents in our files you wish us to tam over to you. These documents will be delivered to you within a reasonable time after receipt of payment for outstanding fees and costs. We will retain any remaining documents in our files for a certain period of time and ultimately destroy them in accordance with our record retention program schedule then in effect.