Cable Franch Renew Miller Van E
Du~
~ck~
MEMORANDUM
March 9, 2004
TO:
The Honorable Mayor and City Council Members
FROM:
Michael C. Van Milligen, City Manager
SUBJECT: Expanding the Scope of Services of Miller & Van Eaton and CBG
Communications in the Cable Franchise Renewal Process
At the February 16, 2004 meeting, the City Council authorized the advancement of the
formal franchise renewal process of the 1984 Cable Act, concurrent with the
continuation of the informal process. Representatives of Mediacom and the City of
Dubuque resumed face-to-face negotiations February 26 and are set to meet again
March 18. Additional direct exchanges are being arranged between technical experts of
both parties.
Other tasks of the formal cable franchise renewal process are to be performed by our
existing consultants and attorneys. CBG Communications, Inc., is prepared to perform
a technical audit of Mediacom's Dubuque cable system. Miller & Van Eaton will prepare
the formal Request For Renewal Proposal and supporting documentation, and will
develop a cable regulatory ordinance and other ordinances as directed. Both firms will
continue their guidance and direct negotiating role under both the informal and formal
processes.
Cable Franchise Administrator Merrill Crawford is recommending approval of letters of
engagement with the Miller & Van Eaton law firm and CBG Communications, Inc.,
expanding the scope of their services.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
fYLuJJ éæ~~
Michael C. Van Milligen '----
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Merrill Crawford, Cable Franchise Administrator
CITY OF DUBUQUE, IOWA
MEMORANDUM
March 5, 2004
MEMO TO: Michael C. Van Milligen, City Manager
FROM: Merrill Crawford, Cable Franchise Administrator~
SUBJECT: Expanding the Scope of Services of Miller & Van Eaton and CBG
Communications in the Cable Franchise Renewal Process
INTRODUCTION: The purpose of this memorandum is to recommend that the
City execute letters of engagement with the Miller & Van Eaton law firm and
CBG Communications, Inc. expanding the scope of their services.
BACKGROUND: At their February 16, 2004 meeting, the City Council
authorized the advancement of the formal franchise renewal process of the 1984
Cable Act, concurrent with the continuation of the informal process.
Representatives of Mediacom and the City of Dubuque resumed face-to-face
negotiations February 26 and are set to meet again March 18. Additional direct
exchanges are being arranged between technical experts of both parties.
As a separate agenda item, I am recommending that the City Council award a
contract to a financial consultant to perform a franchise fee payment analysis.
Other tasks of the formal cable franchise renewal process are to be performed by
our existing consultants and attorneys. CBG Communications, Inc., is prepared
to perform a technical audit of Mediacom's Dubuque cable system. Miller & Van
Eaton will prepare the formal Request For Renewal Proposal and supporting
documentation, and will develop a cable regulatory ordinance and other
ordinances as directed. Both firms will continue their guidance and direct
negotiating role under both the informal and formal processes.
These assignments constitute an expansion of the scope of services existing
contractors in this project. Each firm has offered a letter of engagement to
formally incorporate the additional assignments. Both firms will continue to work
closely with each other, with the newly-hired financial consultant, and with City
staff in the franchise renewal process.
REQUESTED ACTION: The Requested Action is that the City Council approve
the letters of engagement with CBG Communications, Inc. and Miller & Van
Eaton and authorize the City Manager to sign and administer both.
cc: Cindy Steinhauser, Assistant City Manager
MAR-05-2004 18: 14
MILLER & VAN EATON
202 785 1234
P.02
MILLER
& VAN
P.L.L.C.
EATON
MATTHEW C. AMES
KENNETH A. BRUNE'ITI'
FREDERICK E. ELLROD ill
MARC! L. FRlSCHKORN
WILUAM L. LOWERY
N1CHOLASP. MIlLER
HOLLYL. SAURER
10SEPHVANEATON
'Admitted to PraCtice in
California Only
1155 CONNECTICUT AVENUE. N.W.
. SUITE 1000
WAsmNGTON, D.C. 20036-4320
TELEPHONE (m) 785..Q600
FAX (202) 785-1234
OF COUNSEL:
JAMES R. HOBSON
NANNETTE M. HOULlSTONt
GERARD L. LEDERER"
WJLLIAM R. MALONE
JOHN F. NOBLE
**Admítted to Practice in
New Jersey Only
tAdmítted 10 Practice in
New Mexico Only
MIL~ & VAN EATON, L,L.P.
400 MONTGOMERY STRBBT
SU1TE501
SAN FRANCISCO, CAUFORNIA 94104-1216
TE1.J¡PFIONE (415) 477.3650
FAX (415) 477-3652
WWW.MJLLERVAN5ATON.COM
March 5, 2004
Mr. Merrill E. Crawford
Cable Franchise Administrator
City of Dubuque, Iowa
1300 Main Street
City Hall Annex
Dubuque, Iowa 52001
RE:
Engagement of Miller & Van Eaton. P.L.L.C.
Dear Merrill:
We are pleased that you have engaged Miller & Van Eaton, P.L.L.C., to provide
additional legal services to the City of Dnbuque, Iowa ("City") in connection with preparation
of a formal Request for Renewal Proposal; preparation of a cable regUlatory ordinance and
potentially, as directed, other ordinances; provision of adclitiona1legal advice and assistance in
both the formal and informal franchise renewal processes; and in such other communîcations-
related matters as the City may require. 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.
Our fees for legal services in this matter will be based on the tín1e we spend on the
engagement. We will bill the City for non-litigation maners at our negotiated discounted rares,
which currently range from $145 to $290 per bour for attorneys and $85 for paralegal tín1e. If
matters should arise involving litigation or sínñlar proceedings, such as adversarial proceedings
at the FCC, these additional matters will be billed at our higher standard rates. A review of
rates is conducted at least annnally and an adjustment upwards may be made. In the event we
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Miller & Van Eaton, P.L.L.C.
Page 2
believe the nature of the services requeSted justifies a departure from that approach, we will
discuss it with you. In addition, we separately charge for various expenses and other charges
incurred in connection with our rendering of services, all as described in the enclosed Standard
Terms of Engagement, the terms of which are incorporated in this letter.
The client for this engagement is the City.
We understand that the party adverse to your interests in this matter is MCC Iowa LLC
and its corporate parents. Please inform us înunediate1y if you become aware of any additional
adverse parties.
Miller & Van Eaton attorneys have represented and continue to represent a number of
communications companies on matters unrelated to matters dealing with local communities'
public rights-of-way. In addition, the Firm does assist private firms, including
telecommunications companies, in a range of corporate business matters, including certain non-
federal taxation matters, including state taxation. Miller & Van Eaton normally does not
represent any local exchange telephone companies, cable television companies or other
telecommunications carriers on any matters directly adverse to the interests of local
governments in communications services, usage of public rights-of-way, or FCC proceedings
of any sort. We work with non-profit groups, including the National Association of School
Boards and the American Foundation for the Blind, at the Federal Communications
Commission on telecommunications issues related to access to telecommunications facilities,
public access, and universal service. Finally, we are working with trade associations for
persons owning and leasing commercial and apartment buildings on federal communications
issues related to access to those buildings. We do not perceive any acmal conflict of interest,
or potential for a direct conflict, between these matters and our representation of the City. By
signing this letter, you acknowledge our existing representation of the above-described entities
and waive objection to any potential conflict. Obviously, if an actual conflict should ever
emerge, we would notify you immediately and might be precluded from representing both
parties. There is, however, no such conflict at this tín1e, as far as .we are aware.
The attorney-client relationship is one of mumal uust and confidence. 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 your files, 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 note that none of the lawyers currenIly in or associated with the firm is a member
of the bar of the State of Iowa. Accordingly, the scope of representation by the firm's lawyers
MAR-05-2Ø04 18: 15
MILLER & VAN EATON
202 785 1234
P.04
Miller & Van Eaton, P.L.L.C.
Page 3
under this retainer is limited to matters as to which we are permitted to represent you by law,
regulations or custOm.
We appreciate your confidence in us and the opportunity to provide legal services to the
City. We look forward to working with you. If you have any questions regarding tills letter or
our representation, please contact me.
If this letter of engagement is satisfactory to the City, please indicate the City's
concurrence by having it signed below and returning a copy of the letter to me.
Very truly yours,
MILLER & VAN EATON, P.L.L.C.
/?~ ¿ ~
By
Frederick E. Ellrod ill
The Standard Terms of Engagement
contain a binding alternative
dispute resolution provision which
may be enforced by the parties
APPROVED AND AGREED:
DATED:
'-
CITY OF DUBUQUE, IOWA
By:
MAR-05-2004
18: 15
MILLER & VAN EATON
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P.05
MILLER & VAN EATON, P.LLc.
STANDARD TERMS OF eNGAGEMENT
IncludeS informalion provided in aCCDldanœ with /he D. C. Rules of Professionsl Conduct
This statement sels forth certain standard terms of our engagement as your lawyers and is intended as a supplement to the engagement letter thaI we have
with you as our client. Unless modified in writing by mutuel egreemen~ \11.... terms will be an integral pM of our agreement with you as reflected in lI1e engagement
letter. Therefore. we ask lI1alyou review this statement carefully and contact us prompUy if you have any queslions. We suggest lI1et you relain this -...tin your file
with the engagement letter. This engagement shall be subject to the D.C. Rules of Professional Conduct.
TheScopeofOUrWoI1<
We will at allUmes act on your behallto the best of our ability, Any e)q)ressions on our part conceming the outccme of your legal matters are expressions of
our best professional judgment, but are not guarantees. Such opinions are necessarily limited by our knowledge of the facts and are based on the state of the law at
the ti"ne they are expressed,
II is our policy tnat the person or entity that we represent is the person or entity thaI is identified in our engagement lelter. Absenl an e.press agreement 10
the conlJary our representation does not indude any affiliates of such person or entity (e.g., if you are a corporation or partnership, the repæsentalion does not include
any parents. subsidiaries, employees, officers, directors, shareholders or partners o!the colpOration or partnership, or commonly owned corporations or partnerships;
or if you are a trade association, any memben! of the trade essociation). If you believe ws engagement includes additional entities or pe"",ns as our cllenls Y"u
should inform us immediately.
II is also our policy that the atlomey-<:lient relationship will be considered terminated upon our completion of any services that you have retained us 10
perform. If you ialer reteln us to perform further or additional services, our attorney-dient relationship will be revived subject to these Standard Terms of Engagement
and lI1osesetforth in this letter as lhey maybe modified by mutual agreemenlto fit the circumstances atlhattime.
Who WdlProvide the Legal Services
Customarily. each client of the finTI Is s.rved by a principal attorney contact. The principal attomey should be someone In whom you have confidence and
witIJ whom you enjoy wo!1(lng. You are free to request a c!1ange of principal aŒomeyal anytime. Subject to lhesupervisory role of the principal attorney, your wort< or
parts of ~ may be performed by other lawyers and legal assistants in the Urm. Such delegation may be lor the purpose of invoMng lawyers or legal assistanls with
speciale""ertise in a gillen area or for the purpose ofproviämg services on the most officiant and timely basis.
How OUr Fees Will Be Set
Generally, our fees are based on \h. time spent by the lawyers and paralegal personnel who wort< on the matter. We will charge for ai/lime spent in
representing your interest, including, by way of muwation. telephone and office conferences with you and your representatives. consuitants ~f any), opposing counsel.
and others; conferences among our legal and paralegal personnel; factual investigation; legal research; responding 10 your requests for us 10 provide information to
your auditors in connection with reviews or aud~s of financial statements; drafting letters and other documents; and travel. We will keep acourate records of the lime
we devote 10 yourwo<1<.
The hourly rates of our lawyers and legal assistants are reviewed and generally adjusted periodically on a Firm-wide basis to reflect current levels of legal
experience, ohangas in overhead costs, and other factors. Although we may from time to lime, at the client's reques~ furnish estimates of legal fees and otherohargas
that we anticipate will be incurred. these estimates are by \I1e~ nature ine..ct (due to unforeseeable circumstances) and, lI1erefore. the actual fees and charges
ultimately billed may val)' 1'rom such estimates.
Wdh your advanca ag/!!.ment, the fees ultimately charged may be based upon a number of factors. including: the time and effort required, Ihe noveity and
compie)<ity ofth.I""ues presented, the value of the serviceo to you, the amount of money or value of property Involved. the ",u~s obtained. and lI1etime constraints
imposed by you and otherciroumstanœs, such as an emergency closing orthe need for injunctive refieffrom court.
For certain welklefined services and special circumstances we will f~ requested) quote a flat fee. In all suoh s~uatlons. th3t flat fee arrangement Will be
expressed in a lelter. seŒing forth bo\l1 the amount of the fee and tne Scope of the services to be provided. We also will, in approp~ale circumstances, provide legal
services on a contingent fee basis. Any conlingenl fee representation must be the subject of a separate and specifio engagement letter.
Rates and amounts specified in our engagement agreement are net to us cf state and local taxes. II your slate or locality imposes sales or other excise
I""es on us as non-residents for our dient services to Y"u. either through withholding or through direct assessment. lhen \I1e rates and amounts specified in our
engagement letter are grossed up by the amount of such taxes unless paid by you directly, so that the net amounts specified in our engagement letter are not
diminished by any such tax or withholding and \I1e amounts specified in our engagement agreement are not diminished by any such t.. orw~hholdìng.
Additional Charges
In addition 10 our fees. there WIll be other cha/ges for ~ern$ inoklent to Ihe performan"" of our legal services, Generally. charges which reflect the use of
resources provided by outside vendors (courier services, court reporters. etc.) are charged at the vendofs cha/ge to us without markup. C9l13in olher charges reflect
the utilization of firm resources or involvo an integral combination offirm's resources and outside vendors (photocopying. computer research. etc.). These services are
charged at standard rates which encompass both the direct vendor charge and an amount equal to the firm's esli'nate of an appropriate charge for the firm resources
allocated to tha service. While lI1ese charges may not matc!1the firm's e;œct cost of provìcfmg these services in each instance, we believe that these charges are fair
and generally comparable to the charges made by other firrrl& for similar services. The CUlrent basis for these charges is set forth beiow. The Firm may review lI1is
schedule of charges on an snnual basis and adjust them to take into account changes in the Firm's costs and other factors.
computer Research: The Firm uses the LexisfNex'1S and Wesllaw computer-assisted resea!l:h serviCes. W!IeIe applicable, such research i$ more effiCient
\I1an trad~ional book research and permits access to a much broader range of resources Ihan nonTIally found in a law firm ùbrary. However, in addition to the electronic
MAR-05-2004
18: 15
MILLER & VAN EATON
202 785 1234
P.06
data provided by the computer research services, we mllSt provide dedicated hardware and technical support. We have entered into contraCtS for the electronic data
wfth our computer researcl1services which we balieve provides the lowest Tates for our projected lISage.
Photocopying: The Firm charges $.25 par page.
Mail: Clients are charged the act1Jal cost of postage for the U.S. Postal Service, as well as the actual cost ofairexpress couriers.
OVertime: Staff overtime is charged onlywnen reQuirsd bYlhe,time constraints of the specific project.
Facsimile: The Firm oharges $1.00 per page for outgoing faxes, which includes all telephone costs. There]s no charge for incoming taxes.
Telephone Calls: There IS no charge for local calls. Long distance calis which originate at the Washington office are bßled according to the actuai cost of
the call plus 20%.
Travel-Related Expenses: Airi'are, meals, and related !revel expenses charged 10 the client represenl actuai, out-of-pocket cost Automobile moeage is
charged at the IR5-approved Tate of .365 per mile. CrsdltS eamed under ma Frequenl Flyer Pro¡¡rams accrue to the individual traveler and nol to the Firm.
Firm Messengers: There is no charge 10 the client for walking messenger trips made by Washington office employees. Other courier expenses are billed
at the actual cost to !'"Inn.
All Other Costs: The Finn charges actual disbursements for third-party services such as court reporters, expert witnesses, etc.
Unless special arrangements ars otn.!WIse made, fees and expenses of others (such as expens, invostigalors, consultants and court reporters) will ba the
responsibai1y of, and bßled direclly la, the client. Further. all Invoices in ""cess of $500 will be forwarded to the cIienl for direct payment, unlass other arrangements are
agreed to separately.
In the event that payments from you to us include advances of uneamed fees and unincurred costs, you agree thai such advances may be commingled
with the firm's funds, subject to an acrounting not laterthsn upon termination 0' the representation.
Payment
Our billing rates are based on the assumption of prompt payment. Consequently, unless other arrangements are made, fees for services and other charges
WIll be billed monthly and are payable within thirty days ofreœlpt We regervethe right to Charge intereat allerthirty days at the maximum legally permi$sõbie rate up 10
1% per month or 12% per annum on amounts past due.
Representation in UnrelOled Maners
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 you and ~Q 1AÍth respec1to any matter where
confidential infonnation you furnished to us could be used to your material disadvantage. We represent many other companies and Îndj.,¡iduals. It is possible that some
of OUT present or future Clients may have interests wnich conflict with yours in litigation, business transactions or other legal mailers during the time that we are
reprssenting you. Subject to the requirements of the Disbict of Columbia Rules of Professional Conduct wIIleh govern us. we may in the future consu~ 1AÍth you about
our continued representation or our undertaking of. new rspresentation of a client in any such matter that is not substantially related to OUT work for you and that does
not rI$k potential use of confidential informalion to your mateñal disadvantage. The D.C. Rules of Professional Conduct deal specifically 1AÍth instances where
unfol'Gseen confliCtS erise betWeen existing clients of the firm.
Termination of Engagement
You mey terminate our engagement with orwithoU1 cellSe at anytime on written notice to us. We WIll return all olient papers and property immediately upon
tennination of our engagement, We will, however, retain our own tiles. II 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 $OlVices
rendered and all expenses and other charges incurred up to tne date when we receive notice of termination, and for any further work required of U$ in order to facilitate
an orderty tumover of matters in process at the time of tennlnation.
We may terminate our engagement for any of the reasons pelmÌtled under the Rules of Professional Conduct which govern lIS, including: your failure to pay
promptly our bills. misrepresentation of (or failure to disclose) any mateñal facts, action taken contral)' to our advice, or any other conduct or situation that in our
judgment impairs an effective attorney-client relationship between us or presents con"õcts with our professional responsibilities, Subject to the Rules of Professional
Conduct whioh govern us, we may also terminate our engagement by reason of your failure to consent to our representation of a client in accordance with the terms of
the preceding ~on. If required, we will request a stipulation executed by you allowing us to 1AÍthdraw as attomey of record in any judicial, arbitration or similar
proceedings. We may also _Iy for a court order approving our withdrawal from representing you, and you agree in advanoe to our withdrawal.
Altemative Dispute Resolution: Mediation and Albitration
Should any dispute arise conceming eithe<the seI\Iices provided to you by us or our biHing statements forwarded to you, you and we shall first Ity in goed
fa~h to settle the dispute directly. If the cI"<spute is not resolved, it shall ba submitted to valentaI)' third party neutral mediation in accordance with the mediation rules of
the American Arbittation Association. If mediation is not successful, you and we agree to art>ftrate the dispUte in accordance wtth the Ruies of the American Arb~ation
Association. The mediation and art>m-ation proceedings, including any hearings, shall ba held In a mutually agreeable venue, Both}'Ou and we agree that neither of us
is entitled to or shall request or claim punitive orexempla'Y damages.
Client Documents
Wewai maintain any documents you furnish to us in our client file (orfiles}forlnis matter. At the conclusion of the matler (or earlier, if appropriate), It is your
obIigafion to advise us es to which, if any, of tho documents in our files you wish us to turn over to you. These documents will be deovered to you within a reasonable
time after receipt of payment for outstanding fees and costs, We "'111 retain any remaining documents in our files for a certain period of time and ultlmateiy destroy them
in accordance with our record retention program _ule then in effect.
2
TOTAL P.06
FROM: CBG COMMUNICATIONS, INC.
PHONE NO. : 610 648 3815
Mar. 08 2004 04:43PM P2
III
" .
COmmunications, Inc.
P/.l¡",IJpb"OJli~"'C'rn"m"""'"¡~",,."""'.FA""" "'t6l0).....7470 flt'IO)"'-""
s..J>.n,10JIi~"""...,""".Sui"'5,.$,..",.MN,5¡n' P/t651)'79-_"""""".o",
-.,b.~m"..~u.",..
March 8,2004
Merrill Crawford
Cable Franchise Administrator
Cable Television Division
City of Dubuque, City Hall Annex
1300 Main Street
Dubuque, IA 52001-4732
RE: Letter of Engagement
Dear Merrill:
CBG Conunurncations, Inc.(CBG) is please to provide this Letter of Engagement to
continue to provide cable television related consulting services to the City of Dubuque
(City). At this time, these services will specifically cover a technical audit of the
Mediacom subscriber network and Institutional Network, as well as assistance in
ITanchise renewal discussions and negotiations. These services will continue to be
perfonned at our existing hourly rate ($160), plus reimbursable expenses.
Please contact me if you have any questions or need ad&tional infonnation at this time.
Thank you for the opportunity to continue working with the City on this important
project.
Sincere!, . ~
Thomas G. Robinson
Executive Vice President
CBG Commumcations, Inc.
Accepted by:
signature
Name:
Title:
City of Dubuque
F:\ Working CIì""l,IDubuque\Dubuque Docs\20041O40308_Letter- oCEngagmenldoc