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07-10-2009 Letter Potential Conflict of Interest/J Montgomery ATTYTMOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. LA4i' OFFICES 1002 WALNL r STREET, SUITE 300 JAMES R. MONTGOMERY BOULDER, COLORADO 80302 CHARLES N. WOODRUFF TIMOTHY J. &EATON (1941 -1996) RICHARD J. MEHREN TELEPHONE: (303) 443 -8782 FAX: (303)443 -8796 COUNSEL RAPHAEL J. MOSES PATRICIA M. DECHRISTOPHER JOHN WITTEMYER HOLLY C. MEYER ADDRESS CORRESPONDENCE'1'0: DAVID L. 14ARRISON P. 0. BOX 1440 BOULDER, CO 80306 -1440 July 10, 2009 Town Council c/o Larry Brooks, Manager Town of Avon P.O. Box 975 Avon, CO 81620 Re: Potential Conflict of Interest: Town of Avon and Town of Frisco Dear Council Members: Following preliminary consultation with. Town Manager Larry Brooks and Town Attorney Eric Heil, the purpose of this letter is to advise the Town of Avon of water rights legal work that I and my firm are doing for the Town of Frisco and to advise you of the potential for that work to present a conflict with the Town of Avon's water rights interests in the Upper Eagle River basin. The work involves the Town of Frisco's interest in certain negotiations among West Slope entities and the City and County of Denver in the context of Denver's Water Court application for finding of reasonable diligence on certain conditional water rights in the Blue River basin. As part of those negotiations, Denver has indicated a willingness to make water out of Dillon. Reservoir and /or Clinton Reservoir in the Upper Blue River basin available for certain West Slope uses. Avon's consulting engineer Les Botham is also advising the Town of Frisco in these matters. While the Town of Frisco is not directly involved in the negotiations, it has participated in discussions with Summit County and other municipal water suppliers in the Upper Blue River basin. regarding the allocation of any water acquired from Denver. The County is taking the lead in the negotiations with Denver on behalf of Frisco and. those other entities in Summit County. The role of my firm and Les Botham and his firm has been to advise Frisco as to what it should seek out of the negotiations and the amounts and sources of water that would best serve Frisco's needs. Because some of the water may come from the Upper Blue River out of Clinton Reservoir, there is the potential that Eagle Park Reservoir Company and. other Upper Eagle entities would be competing in an attempt to get water from Denver for delivery over the divide into the Eagle River basin. Avon has an interest in Eagle Park Reservoir Company by reason of Avon's membership in the Upper Eagle Regional Water Authority and the Authority's ownership of stock in Eagle Park Reservoir Company. MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. Town Council July 10, 2009 Page 2 The potential for conflict is somewhat removed because Eagle Park Reservoir Company is represented by its own water counsel, Glenn Porzak, and Avon has not asked me to represent it in connection with the negotiations in. any way. However, because the efforts on our part to secure an additional water supply for the Town of Frisco could be seen as contrary to the interests of Eagle Park Reservoir Company or the Authority to bring more water from the BIue River system into the Eagle River system, I thought it prudent to advise you of the potential conflict and to obtain Avon's acknowledgment, consent and waiver of any potential conflict. Avon was aware of my firin's representation of Frisco when it retained us upon Gary Greer's retirement. Because Avon has not requested me to get involved in the negotiations with Denver in any way on behalf of Avon, I don't see this as a direct conflict. I have confirmed in a conversation with Town Manager Lary Brooks that Avon does not expect Mr. Botham or me to represent Avon or otherwise pursue its interests with respect to the negotiations with Denver. Pursuant Rule 1.7 of the Colorado Rules of Professional Conduct govenZing the practice of law in Colorado, this letter is to inform the Town of the risk that representation of the Town of Frisco by my firm may limit our responsibilities in representation of the Town of Avon. Pursuant to the cited Rule of Professional Conduct, an attorney may continue with the representation if the affected. client gives informed consent confirmed in writing. Therefore, I request that Town. Council consider this matter and, if satisfied that the potential conflict has been fully disclosed and addressed, authorize the consent and waiver of conflict: set forth below. Of course, if Council has a concern that the potential conflict affects our ability to adequately represent Avon, or you think that we should not consider Frisco or that certain limits should be placed on our representation of Frisco, I would be happy to discuss this further. Although Mr. Botham's engineering firm is not subject to the Rules governing attorneys, because that firm consults with me on the same matters, we ask that the Town's consent extend to the involvement of Mr. Botham's firm as well. If I can answer any questions or provide additional information, please let me know. Yours truly, c 1hffies R. Montgomeb( / for MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. MOSES, WITTEMYER., HARRISON AND 'WOODRUFF, P.C. Town Council July 10, 2009 Page 3 Acknowledgment of Disclosure and Waiver of Potential Conflict The Town of Avon, acting by and through its Town Council, hereby acknowledges that the law firm of Moses, Wittemyer, Harrison and Woodruff, P.C. and the engineering firm of Leonard Rice Consulting Water Engineers have fully disclosed the potential for conflict of interest set forth in this letter and, notwithstanding the potential for such conflict, the Town grants its consent to the continued representation of the Town of Frisco by those firms with respect to the matters set forth in the letter above. B For the Town of Avo �pWN ATTEST: �- , . JRM:rlo cc: Leslie H. Botham, P. .