CITY OF BOULDER
CITY COUNCIL AGENDA ITEM
MEETING DATE: November 10.2008
AGENDA TITLE: Introduction, first reading and consideration of a motion to order
published by title only an ordinance approving an Intergovemmental Agreement between
the city of Boulder and the city of Denver through its Board of Water Commissioners
regarding recreational use of a portion of the South Boulder Diversion Canal and
consideration of a motion approving a License Agreement to implement the
Intergovernmental A greement referenced above.
PRESENTER/S: Jane S. Brautigam, City Manager
Stephanie A. Grainger, Deputy City Manager
Michael D. Patton, Director, Open Space and Mountain Parks
Ann Goodhart, Division Manager, Real Estate Services
John D'Amico, Property Agent
Steve Armstead. Visitor Master Plan Coordinator
EXECUTIVE SUMMARY:
The purpose of the Intergovernmental Agreement (IGA) and License Agreement (LA) is to
set forth an alrangement for the city to construct a walking bridge over a portion of the
South Boulder Diversion Canal owned by Denver Water Board (DWB). The IGA and LA
will, in-part, assist in the implementation of the Eldorado Mountair/Doudy Draw Trail Study
Area (TSA) plan approved by the Open Space Board of Trustees at its October 11,2006 public
meeting.
The subject properly (Property) is located in Section 31, T1S, R70W, to the south of Eldorado
Springs Drive within the Lindsay Open Space parcel. The Property is bisected by a narrow
parcel of land on which the DWB South Boulder Diversion Canal is located. This narrow
parcel is owned in fee by the city and county of Denver. The Properfy is located within the
Eldorado Mountain/Doudy Draw Trail Study Area.
As a result of the TSA process a number of new trails were identified for construction.
The preferred location of these new trails is dependent on the city of Boulder securing
public access on and across portions of the DWB diversion canal. A bridge connection
over the canal as well as use of the canal road is required for successful implementation of
the TSA plan. In addition, implementation of the Eldorado Mountain Habitat
Conservation Area (HCA) and subsequent on-trail policies are also dependent on a bridge
connection over the canal. The bridge connection and use of part of the service road along
the canal as a trail connection from Doudy Draw west to Fowler Trail will also help avoid
building a new trail system in the environmentally sensitive Spring Brook drainage.
AGENDA rrEM o3!'l*o"" t
Staff has worked with the DWB to negotiate an IGA and LA that identifies a suitable
location for the bridge connection and defines a section of the service roadway that will
provide public trail access as a connection to the Fowler Trail. Staff recommends approval
of the IGA and LA as the best opportunity to provide the necessary trail linkage to
complete the new trails identified in the TSA plan and to assist in the successful
implementation of the Eldorado Mountain HCA. City Council members that may be
interested in visiting the property with Open Space and Mountain Parks (OSMP) staff may
contact Mike Patton at 7 20-564-2000.
STAFF RECOMMENDATION:
Suegested Motion Lanzuage:
Staff requests council consideration of this matter and action in the form of the following
motion:
Motion to introduce and order published by title only an ordinance approving an
Intergovernmental Agreement between the city of Boulder and the city of Denver through
'Water
its Board of Commissioners regarding recreational use of a portion of the South
Boulder Diversion Canal and motion to approve a License Agreement to implement the
Intergovemmental Agreement referenced above.
COMMUNITY SUSTAINABILITY ASSESSMENTS AND IMPACTS :
. Economic: The IGA and LA are components of the TSA plan, which contributes to
council's economic vitality goal, because the OSMP system provides the physical
context for the diverse and vibrant economic system that sustains services for
residents. The land system and the quality of life it represents athact visitors and
help businesses to recruit and retain quality employees. This IGA will support
diversity in economics by supporting local recreational opportunities.
. Environmental: The Open Space Acquisition and Management Plan is a significant
community-based program that is recognized worldwide as a leader in the
preservation of open space lands contributing to the environmental sustainability
goal of the City Council. The TSA plan and its recoÍrmendations assist attainment
of the environmental sustainability goal which the proposed IGA and LA help to
implement.
o Social: Because the.Open Space land system is equally accessible to all members of
the communit¡ it helps support council's community sustainability goal because
all residents "who live in Boulder can feel apart of and thrive in" this aspect of
their communitv.
OTHER IMPACTS:
o Fiscal: $95,000 is estimated for bridge construction and associated improvements.
o Staff time: Normal staff time was required to negotiate the agreement. Additional
budgeted staff time will be required for trail and bridge construction.
Lt'l
AGENDA ITEM #J'TAGI.2
PUBLIC FEEDBACK:
One member of the public commented in support of the agreement at the Open Space
Board of Trustees meeting June 11, 2008. This item is being heard at this public meeting,
advertised in the Dailv Camera.
ANALYSIS:
In the absence of carefully-planned trails, visitors have created a network of undesignated
social trails in the Lindsay Open Space area which has caused significant resource
degradation in places. Many of the undesignated trails that link into the DWB service road
provide access to and along the canal. To effectively manage visitor use and provide a
high quality visitor experience, the TSA plan commits OSMP to build trails in areas
located on either side of the DWB canal. A key component of providing these
opporlunities is to provide a pedestrian/equestrian bridge over the canal and to integrate
parts of the existing access road into the new trail system.
The TSA plan includes three new trails that provide connections between Doudy Draw
Trail and the Fowler Trail. These trails include Goshawk Ridge Trail, Spring Brook Loop
South and Spring Brook Loop North. Completing the Goshawk Ridge Trail provides trail
access through the Eldorado Mountain HCA which will allow on-trail policies to be
implemented. The on-trail policies cannot be implemented until the designated trails are in
place.
hitial discussions between OSMP and the DWB outlined concerns the DWB had with the
option of using the existing service road bridge over the canal. These concerns centered
on: 1) the possible increased hazard of the canal siphon to visitors caused by new trails that
would channel an increased number of people to the siphon area;2) the possible increased
hazard of the canal due to increased visitor travel on the canal road; and 3) the need to
increase securityrelated to protecting the DWB canal facilities and water supply. OSMP
and the DWB evaluated options to place a new pedestrian/equestrian bridge over the canal
in a location that would address the concems D'WB raised and provide a suitable
connecting point between Goshawk Ridge Trail and the trails northeast of the canal.
Determination of the bridge location also included defining the sections of the D\ryB
service road where the public would not be allowed access and where public use of the
roadway would be allowed. The span and location of the bridge will not be impacted by
the potential of the expansion of Gross Reservoir, and there are no plans at this time by
DV/B to expand the canal to carry additional capacity.
OSMP and the DWB staft through a series of exchangedproposals, ideas, field meetings
and progressive negotiations, were able to reach an agreement on the terms and conditions
for locating a bridge over the canal and providing public access for a trail on a portion of
the DWB service road. OSMP staft with assistance from the City Attorney's Office,
drafted the IGA identifying the terms and conditions agreeable to the DWB and OSMP.
Key elements of the IGA include:
o Establishment of a "lease property''where public access is allowed and OSMP
manages this property for recreational purposes.
o Establishment of a 'þatroI area" where public access is not allowed and OSMP has
authority to assist in enforcing access restrictions.
.t
4+l
AGEI\DA ITEM #/'?AGE 3
. Approval for OSMP to construct a multi-purpose bridge over the canal on the lease
property.
o OSMP's commitment to build and maintain signs and fencing along the patrol area
boundaries to assist with preventing public access into prohibited areas.
o Agreement on types and conditions for public activities on the lease property
including such ailowances as bikes, dogs on leash, and equestrians with
prohibitions of activities such as fishing, swimming, and motorized vehicles.
These key elements of the IGA provide DTVB and OSMP with a means to manage and
patrol a section of DWB property as it bisects OSMP lands. This section of the DWB
property was being trespassed upon by many OSMP visitors attempting to cross the canal
to access popular areas of OSMP lands. With the implementation of the IGA, visitors will
be able to legally cross a narrow section of DWB property. Those areas of DWB property
off-limits to the public would be patrolled by OSMP Rangers. These off-limit areas are
identified as "Patrol Property''on Attachment B. DWB and OSMP regard this patrol
arrangement as beneficial to both parties as well as the safety of the public.
Alternatives to the IGA include not constructing any new trails or only constructing new
trails on OSMP property without crossing the DWB canal. This would require trails east
of the D\ryB canal to cross through an environmentally sensitive drainage which OSMP
and the community have expressed interest in preserving. In addition, the desired link for
public access between the OSMP properties on either side of the DWB canal would
continue to cross D\MB private property posing trespassing, safety and patrol issues with
visitor usage. The TSA plan identified new trails as the best means of providing physically
and environmentally sustainable trail connections that channel visitor use away from the
most sensitive natural resources. Continuing unmanaged public access throughout the
Doudy Draw Natural Area and the Eldorado Mountain HCA would result in continued
increase in visitor impacts to areas such as Spring Brook and Bull Gulch and further
undesignated trail development. An environmental goal of the TSA plan was to afford
Spring Brook greater protection from visitor-related impacts. These new trails will provide
a means of managing and directing visitors to their desired destinations along corridors that
avoid the most environmentallv sensitive areas.
S. Brautigam
ATTACHMENTS:
A. Ordinance No.
B. Map
C. lntergovernmental Agreement (IGA)
D. License Agreement (LA)
AGENDA ITE.],/^#' AGE 4
Attachment A
ORDINANCE NO.
AN ORDINANCE APPROVING AN INTERGOVERNMENTAL
AGREEMENT BETWEEN THE CITY OF BOULDER AND
THE CITY OF DENVER THROUGH ITS BOARD OF WATER
COMMISSIONERS REGARDING RECREATIONS USE OF A
PORTION OF THE SOUTH BOULDER DIVERSION CANAL.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BOULDER.
COLORADO:
Section 1. The city council adopts, approves, and authorizes the city manager to enter
into the intergovernmental agreement, entitled "Lease and Intergovernmental Agreement for
Recreational Use of a Portion of the South Boulder Diversion Canal," attached as Exhibit A and
incorporated by thi s reference (the "Intergovernmental A greement").
Section 2. The city manager is directed to sign the Intergovernmental Agreement
wherein the City of Denver though its Board of Water Commissioners leases to the city portions
of land adjacent to the South Boulder Diversion Canal for a trail for a period of ten years, In
addition, the Intergovernmental Agreement sets forth various provisions applicable to the
management of the leased property. The city council authorizes the city managff to approve
any minor changes that do not change the substance of the Intergovernmental Agreement as may
be necessary prior to final execution by the parties.
Section 3, This ordinance is necessary to protect the public health, safety, and welfare of
the residents of the city and covers matters of local concem.
Section 4. The city council deems it appropriate that this ordinance be published by title
only and orders that copies of this ordinance be made available in the office of the city clerk for
public inspection and acquisition.
AGENDA ITEM # ?il PAGE
INTRODUCED. READ ON FIRST READING. AND ORDERED PUBLISHED BY
TITLE ONLY this 10th day of November 2008.
City Manager
Attest:
City Clerk on behalf of the
Director of Finance and Record
READ ON SECOND READING, PASSED, and ADOPTED, AND ORDERED
PUBLISHED BY TITLE ONLY this dav of , 2008.
City Manager
Attest:
City Clerk on behalf of the
Director of Finance and Record
EXHIBIT A: Lease and Intergovernmental Agreement for Recreational Use of a Portion of the
South Boulder Diversion Canal
n rl
AGENDA rTEM #,2fr_PAGE
Bridge Location
&
Trail Alignmenfs
Section 31 T1S R70W
Flinal TrailAlignment
Alignment Using Social Trail
Mickey Mouse Climbing Access
f¡isting Trail
- OSMP Lands
Denver Water Board Property
Patrol Property
Lease Property
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ATTACHMENT C
AGREEMENT DATE:
(To be completed by Den
Recreation)
VERNMENTAL AG
OF A PORTION OF THE SOUTH BOULDER DIVERSION CANAL
THIS LEASE AGREEMENT (Agreement), made and entered into by and between the City
and County of Denver, Acting by and through its Board of Water Commissioners ("the Board"),
and the City of Boulder, a Colorado home rule city, a corporation existing under and by virfue of
the laws of the State of Colorado ("City'')
WiTNESSETH:
ARTICLE I
PROPERTY DESCRIPTION AND USES
l.l .Lease Propertv and Patrol A¡ea. The Board glants to the Cit"v- the exclusive
recreational right and privilege to use, at the expense of the City, and for the benefit of the
genetal public, a portion of the South Boulder Diversion Canal as described in the
attachment titled '.Exhibit A, Lease Property." The Board grants to theCity the authority to
enter the Board's "Patrol Area," as described in the attachrnent titled "Exhibit B, Patrol
Area." The City''s Open Space and Mountain Parks Rangers may enter'the Patrol Area for
the purpose of enf-orcing State and iocal laws and ordinances as may be necessary and at the
expense of the Cit"v.
1.1.1 Water Riehts. No r.vater or water rights are granted or leased by this
Agreement.
I.1.2 Reservation of Use. The Board reserves the right to make full use of the
Lease Property and Patrol A¡ea as may be necessary or convenient in the
operation of the water system uncler the control of the Board. Further, the
Board retains all right to operate. maintain, install, repair, remove or
relocate any of its facilities located within the Lease Properly or Patrol Area
at any time and in such a mailìer as it deems necessary or convenient. ln
any exercise of these rights, however, the Board shali attempt to avoid
interfering ,uvith the activities of the City pursuant to this Agreernent. The
Board retains the right to allor,v other uses of the Lease Properlv and Patrol
A¡ea which will not interfere with any of tlie rights granted to the City by
this Agreement.
1.2 Permitted Uses. The Ci[v agrees to use the Lease Properry solely for the benefit of
the general public for recreation purposes and for no other puryose. The City a-gees to use the
Patrol Area solely for enforcemenf purposes and for no other purpose. The Board must approve all
plans for use, developrnent, improvement and management of the Lease Property and Patrol A¡ea
,rili rr-,;\ rfirar#3!)v*?àaft - 8-
by the Cify. In this regard. the parlies shali prepare and execute an Operating Plan ("Flan") io
defìne the type of recreational use and enforcement and shall include such rules governing the use.
The Plan shall identifi, any areas that are to be closed to the public for the protection of life. health
and property. The Plan shall specify the maintenance responsibilities of the CiW. The Plan shall be
revielved biennially by-the Cifv's Dírector of Open Space and Mountain Parks and the Eoard's
Recreation Manager and District Foreman, and it may be modified at any time upon written
agreement by both parties, This Agreement shall in no way imply that orvnerslup of the land
underlying the Lease Property or Patrol Area or, any other properS.'o.¡¿ned by the Board is being
conveyed.
1.3 Prohibited Uses. Uses. that are prohibited on the Lease Properly shall be iclentifiecl
in the Plan.
1,1 Boald Access. This Agreement does not affèct or limit the right of the Board to
operate, maintain or improve the Lease Properly or Patrol Area, iucluding the drainage theleof. or
the maintenance and improvement of any of its facìlities and vegetatìon on the Lease Ploperly or
Patrol A¡ea. The Board and its employees and agents shall at all tirtes have the unqualified ri-eht to
enter upon the Lease Propa'ty and Patrol Alea in the perfonnance o[ their duties. If 'uvork
authorized by the Board on the Lease Properly or Patrol A¡ea interferes with the reueational use of
the Lease Property or enforcernent of the Patrol Area, the Board will verbally notiQ the Cit¡"5
clesiErated representative a rninimrm of seven days (7) prior to comencement of saìd work with
follor.v-up written notice, hr the case of einergency, the Board rvill verbally'notify the Ci-n" as soorl
as possible. The Board resen/es the nght to close the tlail and lease area on a temporary basis
during large scale construction projects.
1.5 Biemial Revieiv. Designated representatii,es of the Cit-r'and the Board shall meet
in January every tlvo years beginnins in 2010 to rer.'ielv the adniinistratjon and irnplernentation cf
this Apreement.
ÄRTICI,E iI
LEASE, TERVIS
2.1 Terlr of Lease. This Agreement shall commence on the dare of its execution and
shall terminate 10 years thereafter. uniess sooner terminated as provided for hereil.
?.2 Extension of Lease, The Board and the City may exiend this Agreeurent and will
begin negotiation of ari extension at least two years prior to the tennination of the existin-q
Agreement.
2.3 Temination for \fu'ater Svstern Pum_ptçt. The Eoard may tenninate this
Agreement aI any time if the tsoarcl detennines that the Lease Property and/or the Patrol A¡ea is
necessary or usefill in the operation of the Eoard's rvater system, or ìf it sells the Lease Property or
.- r--ii;i.:ì ì').'!rii( + 3, Ll . . ,on r, E
Patrol A¡ea. The Board shall give the Cify sixfy (60) days written notice before tenninating this
Agreement. In the event of a sale of the Lease Property or Patrol Area, the Board shall give the
City an opporrr:nity to submit a proposal to purchase for the Board's consideration.
2.4 Tetminatiori bv the Citv: The City may tenninate this Agreement at any time b¡r
giving the Board sixty (60) days prior rvritten notice. If at the end of the 60 day period a suitable
lessee, approved by the Board, has not resumed the recreational management and enforcement of
the canal, the Ciqv '"vill, at their expense, close recreational use and provide public notice of the
closure.
2.5 Other Termination. If the City is in default of any responsibilities under this
Agreement, the Board shall providè written notice of such default, The City shall have sixty (60)
days after receipt of written notice to cure the arrearage or default. If the default is not cured within
that tirne, the Board may thereafter declare the Agreement terminated. The Board may then enter
into the Lease Properly or Patrol Area. or any par:- thereof. to terminate the interest of the Ciry or
any other person occupyin-e the Lease Property or Patrol Area, and to expel, remove or to put out
any such person, using strch legal force as may be necessary. Upon Îermination, for any reason, the
Cir¡- agrees to sureudet to the Board the Lease Property and Patrol A¡ea immediately anci
peaceably.
2'6 Partial Termination. Tennination hereunder may be applicable to any or all of the
Lease Propert-v or Patrol A¡ea covered by this Agreernent.
2.7 Recreation Exclusive to the Citv'. Use of the Lease Property and Patrol Area by the
CiQ'' shall be sr,rbject to any ancl all uses by the Board and to all changes in such uses by the Board
and furtlier is subject to all licenses, leases and rights-oÊway previously ganted to other parties by
the Board,. Nothing herern contained shall prevent tire Board froln issuin-e licenses or rights-of-
way for roads, pipelines. potver lines. telephone lines, or other public or private facilities over the
lands covered by this Lease Agreement (excluding that portion of the Cif¡ Bridgc). proviclecl,
lrowever. tlie Board wili not issue licenses. easements, leases or rights-of-rvay for any recreational
Llse on any potlion of the Lease Propert¡,- or Patrnl Area as described in paragraph 1 . 1 hereof during
the period of this Lease Agreemeut, it being understood that the Board
'uvill make every reasonable
effort to prevent any encroachment upon the uses by the City.
2.8 Casualty to Lease Properfv-. In the event the Lease Properfy, or any pafi thereof,
shall be damaged by fire or other unavoidable casualty ol disaster rvithout any fault on the parl of
the City, so that the same shall thereby be renclered unfit for use or occupancy. this Agreement may
be terminated at tire option of the Ciry- upon sixty (60)days notice.
2'9 Flood Damaæ. The Board shall not be liable tì:r damage to the C!t¡,'s
improvements on the Lease Propert,v or Patrol A¡ea from flooding or excess water. even if caused
by, contributed to or as a result of any of the Board's reseryoirs or canals.
2.10 Damage to Board Propert]¡. Any of the Board's property damaged or destroyed by
the City or its agents. employees, concessionaires, lessees or other representatives may be repaired
r rlìi:,oì rrflivl u áIJ- uuw,. -l,0
or replaced by the Board at the City's expense or by the City as the parties lnay agreg subject to
City Council appropriation? or, at the option of the Board, and insofar as it legally may, the City
will pay to the Board the reasonable value of such damaged property. The Board shall notifo the
City in writing by regular mail within thirty (30) days of observing any property damage or
destruction, and such r.vritten notification shall include an itemized estimate of the cost of the
repairs necessary.
2.11 Damage to hnprovements Owned bv the Cifv. In no event shall the Board be liable
for any damage to any properly of the City which may be constructed on the L.ease Pr:operty or
Patrol .Area, whether such damage is the result of the use of the Lease Properfy or Patrol Area by
the Board ol'any other cause.
2.12 Assigrrment bv the Citv. The City agrees not to assign its ríghts hereunder or let any
portion of the Lease Property or Patrol Area without first obtaining the prior wdtten consent of the
Board.
ARTTCLE IlI
IÌVTPROVENIENTS
3.1 Construction. Any construction required for recreational use and development,
including but not limited to earlh movelnent, removal or constniction of fences, curb cuts,
parrement and removal of trees, shall be accomplished by and at tlre expense of the Cit¡' ancl
requires the prior approval of the Bo¡rd which approval shall not be unreasonably dela.u-ed or
withheld..
3.2 Alterations. Any alterations or installations requiring rnajor change to the Lease
Property ol Patrol Area require the prior approval of the Eoard which approval shall not be
unreasonably delayed or withheld,
3.3 Improvements, The City. at its own expense, may place physical improvements
upon the Lease Property as may be necessary or desirable for the enhancement of the recreational
purposes contemplatedherein and in furtherance of the Citv's responsibilities. The Cityshall not
piace or build any permanent or temporary implovement other than temporary signs on the Lease
Properry without the prior approval of the Board, which approval shall not be r.rnreasonably
delayed or withheld. Temporary installation is defined as no longel than 90 days and can be
cornpletely removed without damage to the Lease Property, The Cify may temporarily install signs
on the Lease Properly regarding hazard, wildlife and emergency public notifications^ The Cit"v
shall notify the Board prior to the installation of temporary signs and the Eoard shall have the right
to change the locatiorr of any temporaty sign if it is determined that the sign interferes with the
Board's ability to operate the canal. No improvements may be placed on the Patrol Area except
those improvements that may be nece.ssary for enforcement purposes and to keep recreational users
out of restricted areas.
:,,-lll:J,¡i'{tmlu¡* r-3Å ..UOU I I
3.4 Removal of Improvements. All equipment, property and improvements placed by
the City on or about the Lease Property or Patrol Area shall remain the property of the Cit-v. The
Cify may, at any time during the term hereof, remove any improvements. Any improvernents or
personal property placed upon the Lease Properly by the City shall be removed by the City upon
expiration of the Agreement or within ninety (90) days after termination provided that such removal
is made without damage to the Lease Property or Patrol Area. In the event that improvements or
personal property are not removed within 90 days, they will becorne the properly of the Board.
3.5
The City may constnrct a multi-purpose bridge on the Lease Property for recreational and City
pu{poses, which may also be used by lhe Board. The City Bridge shall be constructed, maintained
and o."vned by the Cify at the City's expense. The design of the City Bridge shall be rnutually
agreed upon by the Board and the CiÇ and shall not restrict the Board's use of the Lease Property
as determined by the Board. The specific placernent of the City Bridge on the Lease Properfy
requires prior approval from the Board, which approval shall not be unreasonably delayed or
withhelcl. The location of the City Bridge shall be no further north than the old and abandoned
concrete culvert structures located on both sides of the canal south of the concrete flume over
Spring Brook (refer to Exhibit A). The Cify shall obtain a license to cross the canal from the
Board pnor to installation of the bridge.
3,6 The City's Construction ancl Installation of Fencine and Si$age: The City attd the
Board shall muturally aglee upon the type and location of fencing and signage located within the
Lease Property, TLe Cit-v shall be lesponsible for ali costs associated rvith any fèncing and signage,
The placernent of any signage. unless it is temporary signage, and fencing on the Lease Property
requires the prior approval of the Board, which approval shall not be unreasonably delayed or
withheld.
ARTICLE lV
ENVIRONNIENTAL AND SAFETY CONSIDÐR{TIONS
4.1 Lease Propert]¡ and Patrol A¡ea "As 1s." The City agrees the Lease Properl,v an
Patrol A¡ea is leased "as is" and that the City, insofar as it legally may and subject to Paragraph
6.13, is assuming responsibility for any loss, injury. death or darnage that may result from any and
all defects, be they obvious or hidden. that the Lease Property and Patrol Area may contain. The
Board makes no wan'anty, written or irnplied, that the Lease Propert-v or Patrol Area is fit for an¡,
purpose or that it meets any federal. state, or local law, ordinance or regulation applying to the
Lease Property and Patrol Area.
4.2 Hazardous Materials. a. The City shall not cause or permit any Hazardous
tVaterial to be brought upon, kept or used in or about the premises by the City, its agents,
employees, contractors or invitees without the express written permission of the Board, which shall
not be unreasonably delayed or withheld. V/ithout limiting the foregoing, if the presence of any
Hazardous Material on the premises caused or permitted by the Cify results in any contamination of
the premises. the CiS'shall promptly take all actions, at its sole expense, as are necessary to retum
r,,,i,¿oßÐþi# 3 il ="**n - I 7
the premises to the condition existing prior to the introduction of any such Hazardous Material:
provided that the Board's approval of such action shall fi¡st be obtained, w'hich approval shall not
be unreasonably delayed or withheld so long as such actions would not potentially have any
material adverse effect on the premises.
b. As used herein. the term "Hazardous Nlaterial" means any hazardous or toxic
substance,material or waste which is or becomes regulated by any local govemmental
authority, the State of Colorado or the United States. The tem "Hazardous Material"
includes, without limitation, any material or substance that is (i) defined as a "hazardous
substance" under appropr-iate state law provtsions; (ii) petroleu4 (iii) asbestos; (iv)
I
desigrrated as a "hàzatdous substance" pursuant to Section 31 of the Federal Water
Pollution Control Act (33 U.S.C. $ 1321; (v) defined as a'hazardous substance" pursuant to
Section 101 of the Comprehensive Envirorunental Response, Compensation and Liability
Act (42 U,S,C. $9601); or (vi) defined as a '1'egulated substance" pursuant to Subchapter
D{. Solid Waste Disposal Act (Regulation of U-nderground Storage Tanks) (42 U.S.C.
$6ee l).
4.3 Compliance lvith Laws, The Lease Properly and Patrol Area will not be used, ttor
r.vill the Ciff permit the Lease Property and Patrol A¡ea to be used, for purposes prohibited by the
laws of the United States, the State of Colorado or any political subdivision the¡eof. The Lease
Properly shall be appropriately posted by the Cify*, including signs that identiþ' areas open t'or
recreational use and shall be in a style and form satisfactory to the Board.
4.4 Law Enforcement. The Ciqv shali propose regulations goveming the public
recreational uses of the Lease Properfy. Recreation regulations shall not be etlbctive until the sarne
have been approvecl by the Board and the CiQ, and upon such approval, tlie City shall enforce
such regulations. The City frrrlher agrees that the Lease Properly and Patrol A¡ea ',vill be ¡roliced
and patrolled so that only those activities and uses allowed within the premises are being carried on.
The City shall rnake a good faith effort to obtain the cooperation of local law enforcement a-eencies
to promote orderly and peaceful use of the Lease Property and prohibit use olthe Patrol Area. The
cooperatiorr required shall include the enactrrent of ordinairces or resolutious for enforcement of
law and order on the Lease Property and Patrol Area and for enf'orcement of prohrbited uses. Only
those motorized vehicles needed for operation, maintenance, inspection, and law enforcement by
the City or the Board and its designees shall be allowed on the premises.
'Water
4.5 Oualiw. The water withjn the Lease Property and Patrol Area is untreatecl
and is not to be used as potable water for domestic puryoses. The City understands that the water
transported in the canal is raw water. The Board does not guarantee the potability or supply of
water from the Lease Property and Patrol Area.
4.6 Disposal of Sewage. No rar.v or treated sewage, animal manures or any other
undesirable products shall be dumped on the Lease Property or Patrol Area by the City or any of its
agents, contractors or assigns,
\, ii,iùì'D,\ {ß:ù,f;¡ 3.11,-,- påGsd tg
4.7 Storm Water: The City will not causg pennit or allow any storm water from
entering the canal beyond that which currently enters the canal.
ARTICLE V
IN S URAN C E/]N{DENINIFICATI ON
5.1 The Boards lndemnification: To the extent authorized by law, the City shall
indemnifo. save and hold hannless the Board and its off,rcers, employees and agents, against any
and all claims, damages, liability and court a'uvards including costs, expenses, and attomey fees
incr.rrred as a result of any alleged negligent act or omission by the City undertaken pursuant to
the terms of this Agreement, subject to the Board's compliance with the following provisions:
5.1.1 Claim upon the Board: If a claim is made or a lai,vsuit served upon the
Board, the Board must notify the Ciry", City Attorney's office in wnting within
twenty (20) days after receipt of notice that a claim may be brought against the
Board or that a lawsuit has been filed against the Board regarding the Premises
durìng tlie term of the Agreement. The City shall retain the right to defend any
lawsuit throu-eh attorneys chosen by the City. The Ciff shall retain the right to
compromise or settle any claim or lawsuìt.
5.2 Tlie City's indemnification: To the extent authorized by law, the Board shall
indemnifli save and hold harmless the Cify, its elected officials. employees and agents, against
any and all claims, darnages, liability and courl awards including costs, expenses ancl attonley
fees incuned as a result of any alleged negligent act or onissíon by the Board undefiaken
pursuant to the tenns of this Lease. subject to the City's compliance with the follou,ing
plovisions:
5.2.1 Clairn upon the Citv: If a clairn is made or a larvsuit sen,ed upon the Cit¡'.
the City rnust notil.v the Board in writing within t\,venty (20) days after receipt of notice that a
claim may be brou,eht against the Cify or that a lawsuit has been fileci against the City regarding
tlie Premises or the Road. If a claim is made or a lawsuit served upon the Cilv, the Cify must
notifo the Board in writing within ten (10) days after receipt of notice that a claim may be
brought against the Cify or that a lawsuit has been fìled against the Cify regarding the premises
for activities not relating to the construction or maintenance of Cify irnprovements. The City
sirall retain the right to defend any lawsuit through attorneys chosen by the Cify. The City shall
retain the right to compromise or settle any claim or lawsuit.
5,3 Third party Contract: If and when the City contracts with a third party to perform
serv'ices on the Lease Property. the City shall include in any such contract with any such third
party, a requirement that the third party shall indemnify, save and hold hanniess the Board, its
officers, employees and agents, against any and all claims, damages, liability and court ar¡,ards
(including costs, expenses and attorney's fees) incurred as aresult of any alleged negligent act or
omission by the third party contractor or its offrcers, employees. agents. subcontractors, or
,,;, ri-r.\ iíltrü ,-3U, , ['ar"+j:,: /4
assignees undertaken pursuant to such contract. In addition, a separate policy of wotker's
compensation and employer's liability insurance shall be carried by the contractor and each
subcontractor.
If and when the Board contracts with a third party to perform services on the Lease
Property, the Board shall include in any such contract with any such third party, a requirement
thatthe third party shall indemnify, save and hold harmless the City, its officers, employees and
agents, against any and all claims, damages, liability and court awards (including costs, expenses
and attomey's fees) incurred as a result of any alleged negligent aci or omission by the third party
contractor or its ofücers, employees, agents, subcontractors, or assignees undertaken pursuant to
such contract. In addition, a separate policy of worker's compensation and employer's liability
insurance shall be caried by the contractor and each subcontractor.
5.4 AdditionalProvisions:
5.4.1 Judgments: Nothing contained in this Agreetnent is in arry r,vay intended
to waive or modiff any of the monetary limitations on judgments or any and all other rights,
immunities and protections provided for by the numerous Statutes of the State of Colorado,
including. but not Iimited to:
a) Colorado Governmental lmmunity Act, C.R.S, $24-10-101 et !çq. or any
succsssor statute: and
b) C,R.S. $ 33-41-101 et seq.; and
c) C.R.S, $ 13-21-l15, 01'any successor statute; and
d) C.R.S. $ l3-21-120. or any successor statute'
'Worker's
5.4.2 Compensation: During the life of this Agteetnent, the Ciþ-
shall maintain worker's compensatiou and employer's liabilit-v insurance to covr-r liability under
the laws of the State of Colorado or be a qualifìed self insured'
5.4.3 Insurance: The Ciry* agrees for itself, and any contractol that the City
shall retain to perform work on, or provide sen'ices to or for. the Lease Property that each such
entity shall carry commercial general liability insurance with contractual coverage and
automobile liabilit-v and property damage insurance to include owned. non-owned and hired
vehicles, which are utilized in any way in the use of the Lease Proper-ty. each said policy of
insurance to have limits not less than S1000.000 per occurrence; provided that the City- maybe
self-insured.
Further, the Board agrees for itself, and contractor that the Board shall retain to
perform work on, or provide serwices to or for, the Lease Property, that each such entity shall
carry commercial geireral liability insurance rvith contractual coverage atld automobile liability
and properry* damage insurance to include owned, non-owned and hired vehicles, which are
utilized in any way in the use of the Lease Property. each said policy of insurance to have a limit
not less than $1,000,000 per occuffence. The required commercial general liability and
automobile policies shall provide that for "breach of warranty'' (failure to comply with policy
provisions) and,/or for cross-liability purposes, the coverage provided wili be primary coverage,
,:,ri;;,., r,ífi;lit il31J, r¿ä,{ìilì l5
The City shall provide certificates of insurance or evidences of self-insurance (and
renewals thereof) in a form acceptable to the Board demonstrating that the required coverages
have been obtained.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Equali[¡ of Access. The Lease Property shall be ope,n to all persons 'without regard
to an individual's race, color, religion, national origin, gender, age, sexual orientation, marital status,
military starus or physical or mental disabiliry. [n exercising any right, use or occupancy pennitted
under this Agreement, every indiviùral seeking to do so shall be given a full and equal opportunity
to participate in any of the recreational activities offered by the City.
6.2 Successors and Assisrs. This Agreement and any executed amendment shall be
binding upon the parties, their successors and assigns. This Agreement shall not be assigned
without the Board's prior written approval, which shall not be unreasonably withheld.
6.3 Notices. The Board's Recreation Manager or designatecl representative shall be the
representative of the Board, and the Director of Open Space & Mountain Parks or designated
representative shall be the representative of the City to accept or give any approval, notice or the
like provided Íbr in this Agreement. Any notíce required under this Agreement shall be in writing
and mailed by regular mail to the following addresses:
Board:
Denver Water
Attention: Recreation lvfanager
1.600 West l2th Avenue
Denver. CO 80204
ciÇ:
City of Boulder
Attention: Director, Open Space and Mountain Parks
ó6 South Cherryvale Road
Boulder, CO 80303
The parlies may change their addresses by written notice delivered to the other party as described
in this puagraph.
6.4 Waiver. No waiver of any breach or default of any one or more of the conditions or
covenants of this Agreetnent by either party shall be deemed to imply or constitute a waiver of any
succeeding or other breach or default hereunder.
6.5 No Third Partv Benefits Intended. It is expressly understood and agreed that
enforcement of the terms and conditions of this Agreement, and all rights of action relating to such
enforcement, shali be strictly reserv'ed to the Ciry-' and the Board, and nothing contained in this
.;,,;, il.\ tirl)ì,1ti*ll1\ ,",^G't: / 6
Agreement shall give or allow any claim or right of action by any other person. It is the expressed
iniention of the City and the Board that any person other than the Cif¡ and the Board receiving
services and benefìts under this Agreement shall be deerned to be an incidental beneficiary only.
6.6 Citv not an Emplovee. It is understood and agreed that it is not intended, nor shall it
be construed, that the City or its persorurel are employees or offîcers of the Board for any purpose
whatsoever.
6.7 Apreement is an Inteeration. This instrument constitutes the wliole Agreernent
between the parties, and no additional or different oral representation, prornise or agfeement shall
be binding óo uny of the parties with respect to the subject matter of this instrument unless
referenced herein or agreed upon with the same formality as this instrument.
6.8 Force Majeure Clause. The parties hereto shall not be responsible for any failure or
delay i¡ the perfonnance of any obligations hereunder caused by acts of God, flood, fltre, war or
public enelny.
6.9 Venue, This Agreernent shall be cleemed perlonnable in Boulder County'
notwithstanding that the parties may find it necessary to take some action in fr[therance thereof
optside said Cou¡ty. Venue for any clispute arising hereunder resulting in litigation (other tlian an
eviction actiol under C.R.S. $ l3-40-101 et seq.) shall be in the Distnct Court in and for the County
of Boulder. This Agreement shall be govemed by arrd construed under the larvs of the State of
Colorado.
6.l0 Denver Charter. This Agreement is made under and conformable to Article X of
the Charter of the City and County of Denver. which controls the operation of the Denver
'Water
N,Iunicipal Systern. The Charter provisions are incorporated by this reference ancl shall
supersede any apparelrtly conflicting provisions otherwise contaiued in this Agt'eement.
ó,1l_ funenclments, This A,ereement may not be altered, changed or amended except by
a¡ instrument in writing signed by both parties. No subsequent novation. renewal. addition"
deletion o[ other amendment shall have any folce or effect unless embodied
jn a written
amenclatory or other agreement executed by the parties with the same formality as evidenced herein.
6.12 Govemmental Immunity Act. The parties hereto are relying upon, and have not
waived, the monetary limitations of, and all other rights, ímmunities and protection provided by the
Colorado Governmental Iuununity Act. c'R'S s\ 24-10-101, et seq" as it may be amended from
time to time, or any other limitations, rights, immunities and protection otherwise available to them-
their ofücers and their employees.
6,13 Appropriation of Funds. This Agreement is subject to the appropriation of
sufficient funds by the parties for future fiscal years. Neither the Board nor the Cify inevocably
pledges present cash reserves for payment in fufure fiscal years, nor is this Agreement intended to
create a rnultiple fiscal year direct or indirect debt or financial obligation'
,, .i.::, orrrorr,Stl ,-o^*r, l"l
IN \,YITNESS WHEREOF, the parties hereto execute this Agreement as of the day and
year above written.
CITY AND COLINTY OF DENVER
Acting by and througlr its
APPROVED: BOARD OF WATER COMMISSIONERS
By: By:
H.J. Barry, Manager 4"t¡'og
By: APPROVED AS TO FORN,{:
Brian Good
Director of Operations & Maintenance
,! /-
By ('.xl'r.1,'r¿ ¿; L,Li :L'].VLt.ti
Legal Division
CITY OF BOULDER
By:
Frank \il. Brudo
Citv Manaser
ATTEST:
City Clerk on behalf of the
Director of Finance and Record
Approved as to form: tft,/or
A.tt
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Lease Property
EXHIBIT A
lro ouuay p'ãl
I
I __-_.
Trail
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0 500 1,000
Feet
RT]LES RBGARDING THE OPERATING PLAN
FOR RBCREATION.{L USE AND MANAGE1VIENT
OF
A PORTION OF TIIE SOUTI{ BOT]LDER DIVERSION CANAL
PURPOSE
This Operating Plan for Recreational use and Management of a Portion of the South Boulder Diversion
Canal. hereur referred to as the "Operating Plan", is entered into by the City and Counfy of Denver, acting by and
through its Board of Water Commissioners, -herein referred to as the 'BOARD', ancl the CITY OF BOIJLDER,
a Colorado Home Rule City, herein refer¡ed to as the "CÍ[Y", in order to defìne an orderþ operational and
management procedure for the recreational use and management of a portion of the South Boulder Diversion
Canal. Rules and regulations set forth herein a¡e for the purposes of providing safe and pleasa.nt recreational
experiencæ for those engaging in pennitted recreational uses, and regulating activities along the portion of the
South Boulder Diversion Canal to prevent disruption and injury to the BOARD'S property and operations and to
recreational users of the oremises.
AREA
fte propeny rhat is the subject of this Operating Plan is descr-ibed in the Lease Agreement for
Recreational Use of a portion of the South Boulder Diversion Canal dated befween the
tsO.ARD and the CITY.
The "Lease Proper4/' as that tenn is used herein shall refer to the a¡ea eisting along a portion of the
South Boulder Diversion Canal as described ìn Aftachment A of the LEASE Âr\D
INTERGO\/BRM}ÍENTAL AGREEMENT FOR RECREATIONAL USE OF A PORTION OF TÍIE
SOI.ITÍI BOIILDER DIV'ERSION CA,I\^{-L, except that no land that is within the canal itself, its cross-section
or its flow line shall be includecl in the Lease Property. However, the air space above the canal for the
uxtallation of a bridge to cross the canal is corxidered u'ithin the Lease Properf,v.
USES
Permitted recreational uses of the Lease Property consist of bicycling, picrucking, hiking, horseback
ridtrg and other similar recreational activities as set forth herein, and other approved uses as may be set foth
from time to time in u,riting by both the CITY and the BOARD.
HOURS
The Lease Property r,vill be open to the public during hours consistent with CITY regulations on
surrounding CITY' properties. Only the Lease Proper-fy and any recreational amenities (benches. trash ba¡rels.
adjacørt park, picnic tables, etc.) placed on the Lease Properfy are open to the public. Ail other areas ofthe canal
a¡e closed to the public.
4ll
--.: .:-.r it'ù*í:iJl1.-put!ú, Z0
PROHIBITEDUSES
No motorized rrehicles, including motorized bicycles, minibikes, scooters, e-scooters, e-bikes,
ATV's and go-carts, except for patrol, maintenance, emergency service, or pomit holders shall
be allowed, except in accordance r.vitli the "Ame¡ica¡s with Disabilties Act of 1990". Tlle
CITY is respolsible for specifying, permitting and/br [censing these excepted vehicles.
No fuearms, air guns, archery, slingshots. paint ball actjvities or any types of weapons shall be
permitted, except by law enforcement oftcers in the pursuit of thei'enforcement activities.
No loud gatherilgs, loitering or conducl contraty to the applicable ordinances of the CITY shall
be permitted.
No littering, clunping or vandalism shall bepennitted.
No sr.vimming. hrbing, boating, rafiing, fishing or other water contact is permitted by person,
dog ol'horse.
Tree holrses or swings shall not be permittec{.
Donresticated anjllals shall be kept on a leash at all tùles. f)og orvuers mLrst pick up dog wastes.
SPBCIAL EVENTS
OuJy upon prior written authorization by the BO¡\RÐ'S clesignated representâtive rvill a penuit be
issucd lor sprcial events to be lield at the Lease Property. Holvever. pafiicipants of special el¡erìts which may take
place ott CITY ovvned propert-v rnay pass through the Lease propert-v without authorizatiou from the BOARD. If
the CIIY desÍes to hold a special event at the Leased Property, the CI[Y'urust provide a u'ritten request thai
includes:
(a) A ¡lecise statement of location as to potions of the Lease Properg' irlvolved. N*o event is to
exceed or extend beyond the area described in the pemút,
(b) Specific dates and times of such usage.
(c) Safety rneasures that will be takflr.
(d) A pian addressing adecluate sanitation, trash removal. c¡oi.vd control, and police protection if
large groups ofvisitors are anticipated.
(e) A cop,v of the special events application tlled with the CITY.
The BOARD retairs the exclusive riglit to reflise any special event, which is either on tbe Lease
Prope(v or passes tbrough the Lease Property, when such usage would, il the opinion of the BO-A,RD'S
aúhorized representative. constitute a hindrance to operation of the canal.
-îLl ',','', 2l
FIRE ST]PPRESSIONÆMERCENCY SER1IICES
Fire suppression a¡rd emergency services will be rendered by local fire departmarts to the Lease
Properfy. The CITY may coordinate the services iruofar as may be necessary and applicable.
MAINTENANCE
Unless noted, the CITY is resporsible for maintenance of ail the recreational amenities n6w sxi5ting on
the Lease Properly and any recreational amenities placed on the Lease Propeny* by the CITY. Designated
r€presentatives of the CITY and the BOARD will inspect the Lease Property once a year and will report any
problems or concerïs to the other as soon as possible,
SAMTARY FACILITIES MAINTENANCE
Sanitary facilities may be provr'ded only on CITY- properfy. No permanant or temporary sanitary facility
may be constructed on the Lease Properfy.
HERBICIDES LARVACIDES AND PESTICIDES
The BOARD is responsible for pesticide, la¡vidices and herbicide policies and maintenance ancl will
keç the CITY informecl as to the policies and schedule. Such policies and schedule shall provide for la¡v'acide
application in identified areas of the canal for mosquito control purposes on an as needed basis. In regard to the
weed control prograrl¡ it lvill be the resporsibility of the BOARD to provide advarrce notice of herbicide
applications and/or a schedule of expected applications. tf the CITY has to apply any type of chemicals to control
i¡sect and/or disease on BOARD propefiy, it must be approved by the represenrarive fbr all applications on the
carial. The representative for all applications is Rusty Chri,stensen (303) 275-9605. The BOARD'S
representative nust also be informed of the appìication.
The BOARD wiìl endeavo¡ whenever reasonably possible. to comply rvith tlre CITY's ordìlances,
rules, and policies concenring the application of pesticides and herbicides.
LEASE PRO PERT'Y ù{AINTENANCE
The Lease Property r.vill be maintained by the CITI' to keep th.e Lease Property in a suitable condirion
for recreational use and the BOARD will mairuain the Lease Property to accornrnodate the BOARD'S
maintenance vehicles. The Lease Property will be maintained with a crown and,/or sloped away from the c¿nal to
miriimize puddüne.
TRA.SHIILTTNTENANCE
If needed, the CITY will pick up trash on the Lease Property on a regular basis. No trash barrels or trash
containers of any r¡pe may be placed within the Lease Property.
SIGNS
The CITY will provide and maintain information and reguiatory signs at roadrvay crossings of
the Lease Property. Other signs may be posted as necessary for di¡ectional, informational, or regulatory
purposes along the trail on the Lease Property. Signs may be placed in the Patrol Area if they are
necessary for enforcement purposes and to keep recreational users out ofrestricted areas.
- ,:., illni:tZ-ft-,,r,o, 2A
CITY may
Site iocatio¡s must be approved by the BOARD pnor to installation(s). Hou'ever, the
temporarily install signs regarding hazard, witdlife and emergency pubiic notifications. Temporary
instaliation is defined as no longer than 90 days
. SAtr'ETYRIILES
The following rules shall apply to the public rvithin the Lease Proper! area:
. Sha¡e the trail and be courteous to others at all times.
" Yield to all maintenance vehicles and slower traflc.
" Stay to the right side of the trail=except when passing. A¡nounce approach r,vhen passing.
. Use lights and reflectors and weal bright clothing when using the Trail at rught.
" Clean up waste after your pet. Pet excrement shall be disposed of in appropriate trash
receptacles.
. Keep the t¡ail clean and free of littel so others rnay a¡oy the trail. Littering or dunrping is prolúbited.
. Help keep the trail safe for all users. Please report any rlon-emergency incident to CITI' dispatch at
(303) 441-3333. In the case of ar emergency call 91 1.
tsENCIiES -- REST ARÐAS -. PICNIC AREAS
Benches, rest areas, and picnic areas are not allolved on the Lease Property unl.ess apprcr'ecl by the
BOARD,
The CITÌ' may construct a multi-purpose bridge fbr use by the BOARD, r.he CITY a¡rcl the public.
The CITY Bridge shall be constructed, maintained and owned by the CITY at the CITY'S expense, The
design of the CITY'S Bridge shall be mutually agreed upon by the BOARD and the CITY and shall not
restrict the BOARD'S use of the Lease Property as determined by the BOARD. The specihc placement of
the CITY Bridge requires the prior approval of the BOARD, rvhich approval shall no¿ be unreasonably
delayed or withheld. The CITY'S Bridge shall be no ñrrther north then the old and abandoned concrete
culvert structures located on both sides ofthe canal just south ofthe concrete flume over Spring Brook'
LAWAND OR.DER
The CITY',vill take all reasonable and necessary st€ps to establish rules. regulations, and larvs necessary
to maintain and preserv'e lar.v and order within the Lease Property area along ivith those a¡eas ideffifìed in
attachment titled Patrol Area. The Patrol Area is described in Attachment B of the Lease Agreement and is
generally defined as the a¡ea owned by the BOARD from the tunnel to the north an{ the siphon to the south. The
CITY and any otha' jurisdictions with enforcemeît authority will enforce all appLicable local ordinances and/or
larvs for the municipalþ and various counties as applicable to the said described areas. The CITY'may provide
for patrol personnel to patrol the Patrol Area on a periodic basis to ensure the enforcement of this Operating PIan.
:is,;:i;. É{- '-,,,' )?
DEVELOPIVTENT AND IMPROVEMEI{T
All plans for development and improvement of any areas rvithin the Lease Propefty and Patrol
Area shali be submitted to the BOARD and approved rr r¡,riting by the BOARD prior to implementation.
Approval for most permanent ilstallations will be granted in the form of a license agreement or lease
agreement. The CITY will be notiJied of any license agreements for construction and/or any other
permanent installations, within or over the Lease Property that is govemed by this Operating Plan, other
than those requested by the CITY.
GENERAL
The CITY will keep the BOARD fully informed, at all times, æ to [he use and management of the
Lease Propeny* and will zubmit all plans to the BOARD'S Recreation Manager prior to the implementation or
construction of any faciliry or program.._
The BOARD will keep the CITY fully informed at all times as to any improvements, maintenancg and
utüify work on the canal that may interfere with the recreational uses described herein.
The CITY r.vill provide the BOARD with ke1, col'ltact persons for all communication regarding daily
operations of this Operating Plan. Both parties agree that the Operating Plan may be renegotiated upon written
request by either parfy. Furthe¡ any amendrnent so negotiated shall require written approval of the BOARD'S
RecreationManager and the issuance of a new rule by the CITI'.
OPERAT I Otr* AI C O1\TA CTS
BOARD:
Neil Sperandeo: Recreation Manager 3 03 -628-6 I 89
Rusty Christensen Distnct Foremen 303-8 38-5 92 I
Tony Stengel Assistant District Forernen 303-27E-9ó05
OSfuTP:
lvfichael D. Patton: Director 720-564-2000
Jim Reede¡: Land and Facilities Division lvfarage¡ 720-564-2080
, 2008, pusuant to the Lease
By:
REGULATION RULE
RrLles l{egtrcling the Opcrating Plan f'or llecle-af ioual Use attd Mattagemcttt of a Portitrtt of
the South lSoultler Diversion C'anal.
This regulation is established to enact the l{ulcs Rtrlcs t{eglrtling tltc'Opcratin-q Plan lbr
llccreatiotul tJ.se alrd Mana-ecnrent cll'a Pr.¡l'tiott rll'tltc
South Bouldcl l)iversion C¡rnal.
ALrthority: Section s--l-,1()sMP B.R.C, l98l
Rules approvecl as to form and legality by the City Attorney's oftìce on
tDarel DY , Ciq'AnomeY.
d prior to pgblicStion.b.y the City Manager or his/her delegate on
o^t"¡by .?fu ,ã"*- (\rünager,jDelesiì,"¡. Director of
Depírtrnent, as the City Manager's clelegate.
Three conies of rules filed with the City Clerk (office of Central Records) on
3-\ç\ ¡¡u1"¡,2008.
Dale of publication of notice of fifteen ( 15) day comnent period in the Daily Camera
3-\\-- ,2008.
¡itlvwithout change after considering public
City Mana_eeriD e I egate
Acloptecl rtiles re-filed r,vith the Cify Clerk ancl effective on (D"t"l, 2008'
rt ll
,\UriirD.\ ïï$ùt iìÚ H- . ?,\.\)Ê 2l
*,**NOTJCE TO THE PUBLIC,Ë:F,k
The City Manager of the City of Boulder proposes to adopt a regulation to
tleline ¿tn orclerly operatiottal ancl nranagerrent procecllrre lbl thc recrcational usc and
lnalt¿ìgclììcnt ol a ¡lortion ol'the Stluth [Joulder Diversion Cannl. Rules and regulations beirrg sct
l'ortlt are lbr the l)urposes o['¡rrovitliug salè and pleasant recrc¿tional cx¡rerieuccs f'or those
cnga-eing in perntitlecl lecreational uses. and regulating activities aloirg thc ¡rortiorr ol-the Sorrth
lJoulder IJiversion Caual to prcvcnt disru¡rlion and injury to the pro¡rerty ancl operatio¡rs and to
rccrealion rrsels ol' tlrc ¡rlc.nríscs.
Copies are availâble for public review at Central Records at the
Municipal Building, 1777 Broadway 2nd floor"
Wntten comment sliould be directed to Johrr [)'r\rrricu
l)rolicrty A.rlcnt , ( )Dcrr Snacc cQ lVloLlrtaill l)allç , 7']0--564--2l).1-5 ,
City of Boulder, P.O. Box 791, BoLllder, CO 80306
Acloption will be considered after the l5-day comlnent period.
ATTACHMENT D
AGREEMENT DATE:
(To be completed by Denver lYdter - Prcperty Manøgemenl)
LICENSE AGREEMENT
THIS LICENSE AGREEMENT is made between the CITY AND COLINTY OF DEI'I\iER,
acting by and through íts BoARD oF WATER COMMISSIONERS, a Municipal Corporation of the State
of Colorado, herein referred to as "Board," aûd the City of Boulder, herein referred to as "Licer¡see"
(whether grammatically singular or plural).
\{TIDIESSETH:
The term "Licensee" shall include employees, agents, and contractors of the Licensee.
The term "property" as used herein refers to real property and includes easements, rights of way and
other Boa¡d interests in land and may sometimes be referred to herein as "Board properfy."
The Board, by these presents, without warranting title or interest and subject to the covenants
hereinafter set forttr does hereby authorize the Licensee, its successors and assigns, to consüucl utilize,
maintain, repair, and replace a bridge and appurtenances wiftin and across the Board's South Boulder
Diversion Canal property at the location described attached and incorporated map (Exhibit 'A") and
fi:rther described in the associated Intergovernmental Ageemrent ("IGA") and Operating Plan, attached
hereto as and made a part hereof.
1. All equipment, installations, and other activities are subject to the approval of the Boa¡d.
2. Issuance of this License Agreement indicates that the Boa¡d has reviewed and approved plans for
the Licensee's proposed installation. TIIE LICENSEE SHALL II{AINTAIN, FOR BOARD
INSPECTION, A COPY OF THIS LICENSE AGREEMENT ON THF','. JOB SITE DURING A¡IY
INSTALLATION OR ACTTVTTY AUTIIORIZED MREIN.
3. Any constnrction or activity initiated under this License Agreernent shall comply with and conform
to standards formulated by the Boa¡{ and zuch construction or activity shall be performed and completed
according to the Operating Plant ("OP') and attached map (Exhibit "4") and Intergovemmental Agreernent
("IGA") attached hereto as (Exhibit "B") and made a part hereof.
4. In granting this License, the Board reserves the right to make full use of the property involved as
may be necessary or convenient in the operation of the water plant and system under the contol of the
Board, and the Board retains all right to operate, 1¡aintain, reput, remove, relocate, or install any of its
facilities within the Board's property at any time and in such a manner as it deerns necessary or convenient.
The Board will make reasonable attempts to locate the Licensee's fasilities;however, should damage occur
to the Licensee's facilities, the Board will not be held liable for any such damage. tn the event the
Licensee's installations should interfere with the Board's use, maintenance or operation of its property, at
any time hereafter, the Licensee shall, upon request by the Board and at the Licensee's sole expense,
immediately relocate, rearrange, or remove its installation so as not to interfere with any such Board use.
4l I el-,
AGE!¡DA trqtt*:tL PAÈE 4l
5. All wo¡k authorized by this License Agreønent shall be performed by the Licensee at no expense to
the Boa¡d. Except as otherwiso set forttr herein, the Licensee shall own and maintain its installation
thereafter. This Agreement shall, in no wa¡ imply that ownership of the la¡rd underllng or sunounding
the licensed installation or activity is being conveyed.
6. The Licensee shall noti$ the Board's District Foreman Rusty Christensen ú303'27Ù9605 at
Ieast forty-eight (aS) hours prior to commencÍng worlc In the event of an emergenc¡ the Licensee
shall notify the Board at303-62ù6801 @Íspatch).
7. The Licensee shall complete its installation or activity, clear the area of all constn¡ction debris and
restore the area to its pre-existing condition as nearly as may be possible qrithin seven (7) days from the
date of finalaattonof the initial constn¡cËoir or authorized activity. In the event clearing and restoration of
the area is not completed within the seven (7) days, the Board may complete that work at the sole expense
of the Licensee.
8. At no time shall Licer¡see interfere with the flow of water in Boa¡d facilities, and Licensee shall
assume all risks incident to the presence of water in Board facilities.
9. The Licensee will use all rea.sonable means to prevent aay loss or damage to the Boa¡d or to others
resulting from the constnrction, operatior¡ maintenance, r9pú, modification, replacement, or removal of
the Licensee's installation. Any repair or replacement of any of the Boa¡d's installations on its property
made necessary, in the opinion of the Boa¡d's representative, because of the constnrctior¡ operatior¡
maintenance, repair, modificatior¡ replacement, or removal of the Licensee's installation, shall be made
onlyby the Board and at the sole experu€ ofthe Licensee.
10. The Licensee hereby expressly agrees to defend, indsrnnifi/, and hold harmless, insofar as it legally
may, the Boæ4 its officers, agents, and enrployees, against any liability, loss, damage, dernand, action,
cause of action, or expense of whatever nature (including cor¡¡t costs and attornep' fees) which may result
from any loss, injury, death, or damage incur¡ed by the Licensee, caused by the Licensee's negligence or
wrongful acl or which arises out of or is caused by any act or omission of the Licøtsee, its officers, agents,
or employees in connection with or by reason of any work done or omission made by the Licensee, its
agents, or ernployees, in the constuctior¡ operation, maintorance, re,pair, modification, replacernent or
rernoval of the Licensee's installations.
11. The Licensee understands and agrees that it is fully responsible for compliance with all rules and
regulations relating in any way to the use, storage, teaünenq or disposal of hazardous materials, including
but not timited to, chanicals and pefroleum products. The Licensee agrees to strictly comply with all
federal, state, and local regulations that in any way relate to hazardous materials. I[ as a result of the
Licensee's occupancy of the premises and its operation hererurder, any such law, ordinance, rulg or
regulation is violated, the Licensee shall protec! save harmless, defend, and indernnifr, insofar as it legally
may, the Board from and against any penalties, fines, costs, and expenses including legal fees and court
costs incu¡red by the Boar( caused b¡ resulting tom, or connected with such violation or violations.
12. Certain Board properties may contain habitat for listed "th¡eatened" or "endangered" species
under the Endangered Species Act (ESA). Licensee shall be responsible for determining the presence of
such habitat and taking measures to comply with the ESA.
AßEnDA nr*nr 3L1-rnËË +¡
13. The rights granted to the Licensee hereunder may not be assigned without the written consent of the
Boa¡d.
t4. The rights and privileges granted in this License Agreernent are subject to prior agreements,
licenses, and conveyances, recorded or unrecorded, and it shall be the Licensee's sole responsibility to
determine the existence of any rights, uses, or installations conflicting with the Licensee's use of the
Board's property hereunder and to resolve any conflict
15. If the Licensee does not use ttre right herein granted or its installation for a period of one (1) year, or
iftlre Licensee shall at any time fail to or refi.¡se to comply with or carry out any of the conditions of this
Licanse, the Boa¡d may, at its electior¡ revoke this License Agreement forthwith by written notice to the
Liceruee in person orby mail at the Licensee's last known address. Upon termination of this License, the
Licensee shall have ten (10) da¡æ to rerñsve its installation from the Board's property. In the event the
Licensee does not remove its installation within the time allowe{ the Boa¡d, without incurring liability,
may remove the installation at the Licensee's experuie.
16. Upon abandonment of any right or privilege herein grærted, the rigþt of the Licensee to that extent
shall terminatq but its obligation to indernnit and save harmless the Board, its officers, employees, and
agents, shall not terminate in any event.
17. The Board ma¡ at any time, by gving the Licensee ttrirty (30) days written notice, terminate this
License Agreement.
18. Licerisee shall pay for all materials joined or affixed to the Boa¡d property and shall pay in full all
persons who perform labor upon the Board property and obtain lien releases for all such materials and
labor, which shall be provided to the Board, and shall not permit any mechanic's or material mân's lien of
any kind or nature to be enforced against that Board property for any work done and materials fumished
thereon at the instance, request, or on behalf of Licensee.
19. The bæe license fee includes eight (8) horns of inspection by ttre Board, and if the Board requires
further inspectior¡ the Licertsee shall pay therefore at the prevailing rate.
20. All Board roads and fencing that a¡e distrubed by the conskuction of the Licensee's installation
shall be restored to a condition satisfactory to the Boa¡d's representative within seven (7) days from the
date of finalization of the initial construction or authorized activity. Board roads and fencing that a¡e
disfurbed by the reconshuctior¡ operatior¡ maintenance, repair, modification, re,placernent, or rernoval of
the Licensee's facilities shall immediately be restored by the Licer¡see to a condition satisfactory to the
Boa¡d's representative. The Licensee shall at no time obstruct Board roadways or ingress to or egress
from such roadways. Restoration of roads shall include, but is not limited to, resurfacing when deened
necessary by the Boa¡d's rqresentative. If restoration is not accomplished by the Liceruee wittrin the seven
(7) days, the Board at its election may perform such restoration at the Licensee's expense. The Licensee
shall conduct all constuctior¡ operatior¡ maintenance, repair, modification, replacement, or removal of its
installations in such a manner that the Boa¡d at all times shall have full and complete access to its property.
AGEflITA rena* 4lt-rn;,
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2L If ttre Licensee's activity requires the clea¡ance, fimming, or complete rernoval of tees located
within the Board's propefy, the Licensee must obtain permission from the Board's Locate Center @ 303-
62&16666. The Licensee will be responsible for all clean up of any Eimmings and the rernoval of logs,
branches, limbs, and other debris resulting from the Licensee's activity. Repairs of any damage to Board
property will be made by the Licensee at the sole expense of the Licensee and to the satisfaction of the
Board's representative. Licensee shall replace any tees removed or damaged in accordance with the
current Board's policy, as described in Exhibit "C," attached hereto and made a part hereof.
22. All tenches and excavations, backfill and tamping shall be'in accordance with the Boa¡d's
Engineering Standards and subject to approval by the Board's representative, a¡¡ described in Exhibit "8,"
attached hereto and made a part hereof.
23.
within
24. The Licensee shall place and maintain permanent, visible markers of a t¡pe and at locations
designated the
placing of of
construction, the Board may complete the work at the expense of the Licensee.
25' alled in a
manner
26. The Licemee shall maintain a minimum overliead clearance of nrenty-five (25) feet over the
Boa¡d's property.
28. The Licensee shall construct access road approaches and curb cuts, when necessary, from its
insta
Said
fourteen (14) feet in widtb but maybe wider, as determined by the Boa¡d's representative.
29. The Licensee shall place reinforced concrete cut-off walls, as shown on the attached drawing
(Dr.127, entative.
Each cut- Board,s
representative prior to placønent of concrete.
30. The Licensee shall not and will not be pe'nnitted to discharge water into ot upon any Board property
or facility, but Licensee shall provide for carriage of any water over or across the Board's property or
facility in a manner satisfactory to the Boa¡d's representative.
31. The High Line Canal between Sand Creek and the most westerly unnamed drainage located in
Section 34 d
V/ater Act I
Water Act and obtaining any necessary permit(s) from the proper regulatory authority prior to conducting
AßEHoAtrËtr# sElg_
its activity. Licensee shall zupply the Board with documentation proving that such authority has been
obtained or that such permission is not required by the regulatory authority.
32- Upon completion of the restoration of the canal propely by the Licensee, which may include, but is
as defined in Exhibit "C."
this License Agreement, the Board will perform the restoration at the expense of the Licmsee. The deposit
amount will be retained by the Board for the restoration.
33. The inigation season is from April ls until Nove'nrber l't each year, and diverted water may be
flowing
at other may not
be undertaken during April l't through Novernber ls unless special authorization is obtained from the
Board's Director of Operations & Maintenance prior to the commencenent of said constn¡ction.
34. The Licerisee shall place two (2) permanent marker posts, one at each end of the installation and on
filled
marker
posts shall extend a minimum of¡vo (2) feet below the sr.¡rface of the gound and be encased in concrete.
Each ma¡ker post shall have the t1pe, size, and depth of the installation clearly ma¡ked with I %-nch
stenciling.
35. The Board has authorized certain recreational activities along and within its propety. Prior to the
coÍrmencement of any constn¡ction or activity pursuant to this License Agreement within the property, the
satisfactionof the Boa¡d's Recreational Use Entitv
constuction or activity. The Licensee shall comply with all of said Entity's requirernents that said Entity
deerns necessary to insure the safety of the general public and to minimize interference with recreational
use on the property.
36. For the resolution of any dispute arising from this License Agreernurt, venue shall be in the courts
of the City and County of Denver, State of Colorado.
37. This License Agreement is also subject to the following special conditions: NONE.
AGEIIDAIïËåI $uv*3J -
THIS LICENSE AGREEMENT shall become effective on the date it is sþed by the Director of
Engineering
CITY AND COTINTY OF DENNTER,
actirg by and through its
ATTESTED AND APPRO\ÆD: BOARD OF WATER COMMISSIONERS
By: By:
Geri Ba¡elâ" Robert J. Mahoney
Manager of Real Estate Director of Engineering
Date:
APPRO\ÆD AS TO FORM:
LICENSEE: ttre City of Boulder
By:
Jane S. Brautigam,
CityManager
Attest:
Address: P.O. Box 791
Boulder, CO 80309
By: Phone: 720-56+2035
City Clerk on Behalf of the
Di¡ector of Fina¡ce and Record
Approved as to Form:
By:
CityAttomey's Ofñce
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