02-12-2019 Kissinger & Fellman Waiver of ConflictScott Wright, Acting Town Manager Eric Heil, Town Attorney
Town of Avon, Colorado Town of Avon, Colorado
100 Mikaela Way; P.O. Box 975 100 Mikaela Way; P.O. Box 975
Avon, CO 81620 Avon, CO 81620
Re: Town of Avon /Northwest Colorado Council of Governments
Waiver of Conflict /Project THOR (Middle Mile Broadband Project)
Dear Scott and Eric:
This letter will describe a potential conflict of interest issue related to the Town of Avon,
Colorado's (the "Town") membership with the Northwest Colorado Council of Governments
("NWCCOG"). The background facts are as follows.
I have recently been retained to represent the NWCCOG in connection with Project
THOR which as you probably know is a project designed to create a regional middle mile
broadband network across 10 counties in NW Colorado (the "Middle Mile Broadband Project").
The work I will be conducting for NWCCOG pertains to my review of relevant Project THOR
documents, including but not limited to, (i) reviewing, commenting, editing and negotiating the
proposed network operator agreement with Mammoth Networks; and (ii) reviewing,
commenting, editing and negotiating the proposed "Meet Me Center" Host Contract. NWCCOG
representatives have indicated to me that the Town is familiar with Project THOR and intends to
enter into the Meet Me Center Host Contract.
Prior to my retention by NWCCOG in this matter, I represented the Town in the past in
cable franchise matters. Given my past representation of the Town, a potential conflict of
interest has been created in representing the Town and NWCCOG in the Middle Mile Broadband
Project. The Town should consider its ongoing relationship with me and with the Firm as an
attorney-client relationship. With one exception, the Colorado Rules of Professional Conduct
generally prohibit a lawyers' representation of any client that will or could become directly
adverse to another current client. See Colo. R.P.C. 1.7(a). Yet, the conflict of interest rule
contains an exception that allows both clients to waive the conflict of interest in writing. See
Colo. R.P.C. 1.7(b).
NWCCOG has been advised of the above-described potential conflict of interest and does
not see a conflict of interest in my representation of NWCCOG and the Town in connection with
Project THOR. If the Town is comfortable with waiving the above-described potential conflict
of interest and wishes to proceed, please sign this letter acknowledging waiver of the potential
conflict of interest outlined above and return it to my attention via email.
KISSINGER & FELLMAN, P.C.
ATTORNEYS AT LAW
PTARMIGAN PLACE, SUITE 900
3773 CHERRY CREEK NORTH DRIVE
DENVER, COLORADO 80209
RICHARD P. KISSINGER
TELEPHONE: (303) 320-6100
JORDAN C. LUBECK
KENNETH S. FELLMAN
FAX: (303) 327-8601
BRANDON M. DITTMAN
JONATHAN M. ABRAMSON
"i%w.kandf.com
GABRIELLE A. DALEY
BOBBY G. RILEY
PAUL D. GODEC, SPECIAL COUNSEL
January 28, 2019
VIA EMAIL (swri1zht(a)avon.or1)
VIA EMAIL (ericheillaw(d)gmail.com)
Scott Wright, Acting Town Manager Eric Heil, Town Attorney
Town of Avon, Colorado Town of Avon, Colorado
100 Mikaela Way; P.O. Box 975 100 Mikaela Way; P.O. Box 975
Avon, CO 81620 Avon, CO 81620
Re: Town of Avon /Northwest Colorado Council of Governments
Waiver of Conflict /Project THOR (Middle Mile Broadband Project)
Dear Scott and Eric:
This letter will describe a potential conflict of interest issue related to the Town of Avon,
Colorado's (the "Town") membership with the Northwest Colorado Council of Governments
("NWCCOG"). The background facts are as follows.
I have recently been retained to represent the NWCCOG in connection with Project
THOR which as you probably know is a project designed to create a regional middle mile
broadband network across 10 counties in NW Colorado (the "Middle Mile Broadband Project").
The work I will be conducting for NWCCOG pertains to my review of relevant Project THOR
documents, including but not limited to, (i) reviewing, commenting, editing and negotiating the
proposed network operator agreement with Mammoth Networks; and (ii) reviewing,
commenting, editing and negotiating the proposed "Meet Me Center" Host Contract. NWCCOG
representatives have indicated to me that the Town is familiar with Project THOR and intends to
enter into the Meet Me Center Host Contract.
Prior to my retention by NWCCOG in this matter, I represented the Town in the past in
cable franchise matters. Given my past representation of the Town, a potential conflict of
interest has been created in representing the Town and NWCCOG in the Middle Mile Broadband
Project. The Town should consider its ongoing relationship with me and with the Firm as an
attorney-client relationship. With one exception, the Colorado Rules of Professional Conduct
generally prohibit a lawyers' representation of any client that will or could become directly
adverse to another current client. See Colo. R.P.C. 1.7(a). Yet, the conflict of interest rule
contains an exception that allows both clients to waive the conflict of interest in writing. See
Colo. R.P.C. 1.7(b).
NWCCOG has been advised of the above-described potential conflict of interest and does
not see a conflict of interest in my representation of NWCCOG and the Town in connection with
Project THOR. If the Town is comfortable with waiving the above-described potential conflict
of interest and wishes to proceed, please sign this letter acknowledging waiver of the potential
conflict of interest outlined above and return it to my attention via email.
Page 2
If you have any questions or concerns and would like to discuss this further, please let me
know. Thank you.
Very truly yours,
S GER & FELLMAN, P.C.
_ -----
Ke en th S. Fellman, Esq.
kfellmanc,kand£com
KSF/eaj
cc: Nate Walowitz, Director, Regional Broadband (via email: nwalowitz(a?nwccog orgl
By signing below, the Town acknowledges the potential conflict of interest between
the representation of NWCCOG in connection with Project THOR (the Middle Mile
Broadband Project) and the Town. The underlying implications of any potential conflict of
interest have been explained to the Town. Being fully advised in the circumstances, the Town
hereby waives the potential conflict of interest outlined above and agrees to have NWCCOG
and the Town represented by Kissinger & Fellman, P.C. in NWCCOG's Project THOR,
subject to the terms of this letter.
By:
Name:
Title:
Date:
ATTEST:
TOWN OF AVON
KISSINGER & FELLMAN, P.C. • 3773 Cherry Creek North Drive, Suite 900, Denver, CO 80209 • (303) 320-6100 • FAX: (303) 327-8601