HomeMy WebLinkAboutbocc.ord.034.2023AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN
COUNTY, COLORADO ACCEPTING AN ENCROACHMENT LICENSE FROM THE
ROARING FORK TRANSIT AGENCY FOR THE PURPOSE OF CONSTRUCTING
THE ASPEN VILLAGE/GERBAZ PEDESTRIAN BRIDGE
ORDINANCE NO. 034- 2023
RECITALS
1. Pursuant to C.R.S. § 30-35-301, the Board of County Commissioners of Pitkin
County, Colorado (the `BOCC"), a Home Rule County, is authorized to make and publish
ordinances for carrying into effect or discharging the powers and duties conferred upon such
counties by law and as seems necessary.
2. Pursuant to Section 2.8.1 of the Pitkin County Home Rule Charter, the Board of
County Commissioners of the County of Pitkin, Colorado is authorized to take official action by
Ordinance for certain matters as set forth in the Horne Rule Charter as well as the Colorado Revised
Statues as amended.
3. Section 2.8.1.1 of the Pitkin County Home Rule Charter provides that official action
by ordinance shall be required for the "granting of easements in public lands, acquisition, vacation,
sale, or purchase of any real property asset, lease in excess of one year of public lands, and
authorization of proceedings in eminent domain;" and
4. By Planning and Zoning Resolution No. 09-2022, the Planning and Zoning
Commission granted Location and Extent approval (the "Land Use Approval") for the Rio Grande
Trailhead and Node Improvements which included the construction of the Aspen Village/Gerbaz
Pedestrian and Bicycle Bridge connecting the Highway 82 underpass / Aspen Village Trail and
the regional Rio Grande Trail.
5. The proposed bridge will connect to the Rio Grande Trail within the right of way
of the former Denver and Rio Grange Railroad, now administered by the Roaring Fork Transit
Agency ("RFTA"), which desire to convey to Pitkin County an encroachment license allowing
construction and maintenance of said improvements.
6. Pitkin County and RFTA agree that trail uses of the Rio Grande right of way are
subservient to potential rail uses, and agree that the permissions granted in the license agreement
may be revoked and that all trail improvements will be relocated as necessary for rail uses.
7. The BOCC desires to accept the license agreement from RFTA and RFTA desires
to grant said license agreement to allow construction and maintenance of the Aspen Village/Gerbaz
Pedestrian and Bicycle Bridge, subject to the (imitations noted above and therein.
8. The Chair (or Chair's designee) shall be authorized to execute the license
agreement upon adoption by the BOCC and with approval to form by the Pitkin County Attorney's
Office.
111011111111111111111111111111111111111111111111011110111111111
RECEPTION#: 700148, R: $0.00, D: $0.00
DOC CODE: ORDINANCE
Pg 1 of 11, 01/25/2024 at 02:22:35 PM
Ingrid K. Grueter, Pitkin County, CO
ORDINANCE NO. 034- 2023
9. The BOCC finds that adoption of this Ordinance is necessary for the immediate
preservation of the public health, safety, and welfare of the citizens of Pitkin County and therefore
declares this Ordinance to be effective immediately upon adoption.
NOW THEREFORE, BE IT ORDAINED that the Board of County Commissioners of
the County of Pitkin, Colorado, hereby adopts this Ordinance Accepting an encroachment license
from RFTA allowing construction of the the Aspen Village/Gerbaz Pedestrian and Bicycle Bridge.
The Chair of the Board of County Commissioners of the County of Pitkin, Colorado, or his or her
designee, is further authorized to execute such documents as necessary to consummate this
transaction subject to the recommendation for approval as to form by the County Attorney.
Furthermore, the BOCC specifically finds that authorization of any and all development or
encroachment activities including, but not limited to, construction of the proposed pedestrian
bridge inside the Rio Grande Railroad corridor rests solely with RFTA.
INTRODUCED AND FIRST READ ON THE 11 TH DAY OF OCTOBER 2023 AND SET FOR
SECOND READING AND PUBLIC HEARING ON THE 15TH DAY OF NOVEMBER 2023.
NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE
ORDINANCE PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE 26TH DAY OF
OCTOBER 2023.
NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE ORDINANCE POSTED ON
THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) ON THE 19TH DAY
OF OCTOBER 2023.
ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON THE 15TH DAY OF
NOVEMBER 2023.
PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN
TIMES WEEKLY ON THE 23R° DAY OF NOVEMBER 2023.
POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKIN COUNTY
WEBSITE (www.pitkincounty.com) ON THE 1 6TH DAY OF NOVEMBER 2023.
ATTEST: BOARD OF COUNTY COMMISSIONERS
By. S By: Friumit, jack%
Sam Engen Francie Jacober, Chair
Deputy County Clerk
Date: Dec- 06-2023
2
APPROVED AS TO FORM:
Richard Y. Neiley III
Asst. County Attorney
MANAGER APPROVAL
By:
Jon Peacock, County Manager
ORDINANCE NO. 034- 2023
3
RECEPTION#: 700147, R: $0.00, D: $0.00
DOC CODE: ENCROACH
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Ingrid K. Grueter, Pitkin County, CO
Contract No. MP 391.01
ENCROACHMENT LICENSE
THIS ENCROACHMENT LICENSE AGREEMENT is made and entered into,
effective 1101fmL,r by and between THE ROARING FORK
TRANSPORTATION AUTHORITY (RFTA), hereinafter called the "Licensor" or "RFTA" and
the Board of County Commissioners of Pitkin County, Colorado, hereinafter called the "Licensee."
WITNESSETH, that RFTA, for and in consideration of the covenants and agreements of
the Licensee contained herein and upon the terms and conditions stated, hereby acknowledges,
licenses and permits the continuation of a temporary non-exclusive encroachment (hereinafter
called "Encroachment") upon the rail corridor ("Corridor") of RFTA, the Encroachment being
more particularly described as a pedestrian bridge adjacent to and across a portion of the RFTA
Railroad Corridor. (See Exhibit A)
THIS LICENSE is expressly conditioned upon the performance by the Licensee of all the
covenants and agreements hereinafter set forth, and it is also hereby stipulated that a waiver by
RFTA of any breach of any such covenant or agreement shall in no way impair the right of RFTA
to avail itself of any subsequent breach of the same or any other covenant or agreernent.
"Encroachment" shall mean only the improvement(s) and use(s) specifically described as
a pedestrian bridge adjacent to and across a portion of the RFTA Railroad Corridor, with more
specifics detailed on the Exhibit A. Other than the Encroachment, Licensee is not permitted to
make any other improvement(s) to, or use(s) of, the Corridor without specific prior written consent
of RFTA. It is expressly stipulated that the Encroachment is to be for pedestrian purposes. The
term "Encroachment" shall include without limitation such safety devices as shall be required by
RFTA, or which may at any time be required by any Local, State or Federal law, or by any order
of any Local, State or Federal officer or regulatory board having jurisdiction over such matters.
1. Re -vegetation and Weed Control. The Lessee agrees to present to RFTA a re
vegetation and weed control plan for the reclamation of any soil disturbed within the rail corridor
resulting from the staging, construction, inspection, future repairs or future upgrade of the
Encroachment. The re -vegetation plan should be consistent with the RFTA weed control plan
and address the replacement of any grasses, trees, or shrubs, disturbed or destroyed as a result of
the construction process and a plan for the control of noxious weeds within the construction area
for a period of three (3) years.
2. Maintenance and Repair. The Licensee shall, at the sole cost and expense of the
Licensee, construct, maintain, repair, reconstruct, relocate or remove the Encroachment and all its
appurtenances whenever necessary and when required to do so by RFTA, in accordance with plans
prepared by Licensee and in a manner satisfactory to RFTA. RFTA, however, shall have the right,
if it so elects, at any time, though it shall be under no obligation whatever to do so, to construct,
Encroachment License
Page 1 of 8
maintain, repair, reconstruct, relocate or remove the Encroachment and all or any of its
appurtenances, notwithstanding the obligation of the Licensee to construct, maintain, repair,
reconstruct, or relocate the Encroachment. Furthermore, in the event RFTA at any time so elects,
the Licensee shall, upon presentation of estimates, advance such sum of money as RFTA may
deem necessary for such construction, maintenance, repair, reconstruction, relocation or removal,
or upon a bill being rendered for work already done, the Licensee shall immediately reimburse
RFTA for the cost of such work. The optional right of RFTA to maintain, repair, reconstruct,
relocate or remove the Encroachment shall in no manner or degree relieve the Licensee's
responsibility to RFTA or to other persons or corporations for the failure of the Licensee to
properly maintain, repair, reconstruct, relocate or remove the Encroachment, or any other structure
which RFTA agrees to maintain, repair, reconstruct, relocate or remove.
3. Limitations on Rights Granted. This License is without covenant of title or quiet
enjoyment and is subject and subordinate to a reservation of the prior and continuing right of RFTA
to all other uses of the Corridor, including the right to construct, use, maintain, repair, relocate and
renew in RFTA's sole discretion any and all improvements, including without limitation tracks,
overhead lines, pipelines, busways, trails and other facilities upon, along, over, under or across
any or all parts of the Corridor, all of which may be done at any time by RFTA without prior notice
and without liability to Licensee or to any other party for compensation or damages. This License
is subject and subordinate to all existing leases, licenses, easements, permits, claims of title or
other interests and as may in the future be modified, renewed or extended by RFTA, including but
not limited to any fiber optic cable easements.
4. License Fee. The Licensee agrees to pay to RFTA, in advance, the sum of $10.00 per
year for the License herein granted and a one-time $ 100.00 processing fee, due and payable to RFTA upon
execution of license.
5. No Interference with RFTA's Uses. The Licensee at the Licensee's expense, shall
keep any track, busway or trail constructed adjacent to the Encroachment clean and free from dirt,
rocks and other material, and shall not damage or permit the damaging of any track, busway or
trail adjacent to the Encroachment, or permit any condition which RFTA determines in its
discretion may interfere with the safe operation of locomotives, railcars, trains or other vehicles or
the use of any trail adjacent to the Encroachment. Licensee acknowledges that RFTA's Corridor
is not abandoned and is under the jurisdiction of the federal Surface Transportation Board.
Licensee further acknowledges that the Corridor is "railbanked" so that RFTA is required to
preserve the Corridor for future rail use and further understands and acknowledges that RFTA is
and will continue to preserve the Corridor for future rail use.
6. Protection of Drainage. Any and all cuts and fills, excavations or embankments
necessary in the maintenance of the Encroachment shall be made and maintained in such manner,
form and extent as will provide adequate drainage of the Encroachment, the Corridor, and
adjoining lands. Wherever any such fill or embankment may obstruct the natural and pre-existing
drainage from such lands, Licensee shall construct and maintain sufficient culverts or drains as
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may be required to accommodate and preserve such natural and pre-existing drainage.
7. Environmental Protection. Licensee shall, at its expense, comply with all applicable
laws, regulations, rules and orders regardless of when they become or became effective, including,
without limitation, those relating to health, safety, noise, environmental protection, waste disposal,
and water and air quality, and furnish satisfactory evidence of such compliance upon request of
RFTA with regard to activities on the Encroachment. Should any discharge, leakage, spillage,
emission or pollution of any type occur upon or arise from the Encroachment as a result of
Licensee's use, presence, operations or exercise of the rights granted hereunder, Licensee shall
immediately notify RFTA and shall, at Licensee's expense, clean all property affected thereby, to
the reasonable satisfaction of RFTA (insofar as the property owned or controlled by RFTA is
concerned) and any governmental body having jurisdiction in the matter. RFTA may, at its option,
clean RFTA's property of such discharge referred to above, and Licensee shall indemnify, defend
and hold RFTA harmless from and against all claims, liability, costs and expenses (including
without limitation, any fines, penalties, judgments, litigation costs and attorneys' and consultants'
fees and expenses) incurred by RFTA as a result of any such discharge, leakage, spillage, emission
or pollution by Licensee.
8. Protection of Underground Cable. Licensee acknowledges that CenturyLink has
an easement for underground cable along the Corridor and that fiber optic cable is buried through
the Corridor. Licensee, at Ieast five (5) days prior to performing any excavation activities on the
Corridor or Encroachment, shall notify RFTA at (970) 384-4971 and shall notify CenturyLink at
1-800-AT-FIBER (a 24-hour number) to receive a CenturyLink control number. Prior to
beginning any work on the Encroachment, Licensee shall determine where any
telecommunications system is buried on or about the Encroachment, the names of the
telecommunications company(ies) involved, arrange for a cable locator, determine whether
arrangements for relocation or other protection of the fiber optic cable is required and shall so
notify RFTA. Any such relocation or protection shall be at Licensee's expense.
9. Protection of Trail and Conservation Easement. Licensee acknowledges that the
Corridor and Encroachment are subject to and encumbered by a Deed of Conservation Easement
and Deed of Trail Easement dated June 30, 1997, recorded July 3, 1997 in Book 1024 at Page 621,
Reception No. 510446, Garfield County records (the "Conservation Deed"). The Licensee agrees
not to undertake any construction activity within the Encroachment without first obtaining the
written approval of RFTA. The notice addresses for RFTA is as follows:
If to RFTA: RFTA
Attn: Corridor Manager
1340 Main Street
Carbondale, Colorado 81623
970-384-4971
If to Licensee: Board of County Commissioners of Pitkin County.
Encroachment License
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10. Licensee's Duty to Install Safety Improvements. If at any time after the installation
of the Encroachment, any Local, State or Federal law or regulation, or any Local, State or Federal
officer or regulatory board or commission having jurisdiction shall require any alterations, changes
or improvements of the Encroachment, as herein defined, or any additional safeguards, protection,
signals or warnings, the same shall be constructed, maintained and operated at the sole expense of
the Licensee.
11. Any Future Work to Require Permit. The Licensee shall not enter upon the
Encroachment or Corridor for the purpose of constructing, repairing, reconstructing, relocating or
removing the Encroachment without a special written permit first having been obtained from
RFTA, except in cases of an emergency when work is necessary to avert injury to persons or loss
or damage to property. All work of construction, maintenance, repair, relocation or removal shall
be done by the Licensee in such manner as to cause no interference with the constant, continuous
and uninterrupted use of the tracks, trails, buildings or other improvements of RFTA now in place
or as may be installed in the future by RFTA in RFTA's discretion.
12. Licensor's Right to Alter, Relocate. or Remove. This License shall not be deemed
to give the Licensee exclusive possession of any part of the premises described, but RFTA shall
have the unimpaired right to construct, maintain, repair, relocate or remove track, trails, buildings
or appurtenant structures or other improvements deemed appropriate in RFTA's discretion and
nothing shall be done or suffered to be done by the Licensee at any time that shall in any manner
impair the usefulness or safety of any property of RFTA or of any track, trail, building or
appurtenant structure or other improvement to be hereafter constructed. RFTA shall have the
right at any and all times hereafter to construct, maintain and operate such additional tracks, trails,
buildings, appurtenant structures or other improvements where the Encroachment is located, as
RFTA may from time to time elect. In case of any such change by RFTA requiring the alteration,
relocation or removal of the Encroachment, the Encroachment shall be altered as directed by RFTA
or entirely removed by the Licensee at the sole cost and expense of the Licensee, in such manner
as may be deemed necessary by RFTA to conform to the tracks, trails, buildings, appurtenant
structures or other improvements on the Corridor or Encroachment as changed, altered or
improved, and if the Licensee shall fail to do any of the things in this paragraph enumerated, RFTA
may do or cause the same to be done at the cost of the Licensee.
13. Liens. Licensee shall pay in full all persons who perform labor on the
Encroachment for Licensee and will not allow any mechanics' or materialmen's liens to be
enforced against RFTA's Corridor for work done or materials furnished at Licensee's instance or
request. If any such liens are filed thereon, Licensee agrees to remove the same at Licensee's own
cost and expense and to pay any judgment which may be entered thereon or thereunder. Should
Licensee fail, neglect or refuse to do so, RFTA may pay any amount required to release any such
lien or liens, or to defend any action brought thereon, and to pay any judgment entered therein,
and Licensee shall be liable to RFTA for the payment of any such liens or judgment and any and
all costs, expenses, damages, attorneys' and consultants' fees and expenses, and any other amounts
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Page 4 of 8
expended in defending any such proceedings
I4. Licensee's Assumption of Liability. The Licensee assumes the entire burden and
duty of preventing the use of the Encroachment by any persons, firms or corporations, other than
those mentioned herein for whose benefit the Encroachment is licensed; and Licensee assumes all
liability for damage to or destruction of property, injury to or the death of persons resulting from
the use of the Encroachment by persons other than those for whose benefit the Encroachment is
licensed, or resulting from the failure on the part of the Licensee to keep the Encroachment and all
of its appurtenances in a safe condition.
15. Indemnification. The Licensee shall at all times protect, indemnify, defend and
save RFTA harmless from any and all claims, demands, judgments, cost, expenses, and all damage
of every kind and nature made, rendered or incurred by or in behalf of any person or corporation
whatsoever, in any manner due to or arising out of any claim for injury to or death of any person,
or any claim for damage to property of any person or persons whomsoever, including the parties
hereto and their. officers, families, servants and employees, in any manner arising from or growing
out of the construction, maintenance, operation, repair, extension, renewal, existence, use or
removal of the Encroachment, or the failure to properly construct, operate, maintain, renew or
remove the same, and from all costs and expenses, including attorneys' and consultants' fees and
expenses, connected in any way with the matters and things contained in this License Agreement.
Neither the right of supervision by RFTA of the location, installation, operation and the
maintenance of the Encroachment, nor the exercise or failure to exercise the right, nor the approval
or failure to disapprove, by RFTA of the location, installation, operation and maintenance of the
Encroachment, nor the election of RFTA to repair, construct, reconstruct or remove the whole or
any part of the Encroachment, shall be deemed a waiver of the obligations of the Licensee
contained in this License Agreement, expressed or implied.
16. RFTA's Right to Terminate License. If the Licensee shall fail to locate, construct,
operate, use, repair, extend, renew, relocate or remove the pedestrian bridge in accordance with
the terms of this License Agreement and to the entire satisfaction of RFTA, or shall fail to pay to
RFTA any License Fee or any other sum of money for the construction, repair, extension, renewal,
relocation or removal of the Encroachment, or shall fail to adjust the Encroachment to any changes
made by RFTA, or shall in any respect fail to keep and perform any of the conditions, stipulations,
covenants and provisions of this License Agreement to be kept and performed by the Licensee,
this License Agreement shall at the option of RFTA be void and of no effect; and this License shall
immediately cease and terminate and RFTA shall have the right to remove the Encroachment and
restore the right of way and premises of RFTA at any time thereafter at the sole expense of the
Licensee. Any termination hereunder shall be effective thirty (30) days following notice delivered
to Licensee. Any notice herein provided for shall be deemed given and delivered if mailed in an
envelope properly stamped and addressed to the Licensee at Licensee's last known address.
Termination of this License for the convenience of RFTA shall occur only if the RFTA Board
votes by a 2/3 majority to do so.
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Page 5 of 8
17. Abandonment of Encroachment. Non-use of such Encroachment for the purpose
for which it was originally constructed, continuing at any time for the period of one year; shall
constitute an abandonment of this License. Unless so abandoned or terminated, as provided herein,
this License shall remain in full force and effect until terminated by written notice given by either
party to the other party not less than sixty days in advance of the date of such termination; but it is
understood that if at any time in RFTA's discretion the maintenance and operation of the
Encroachment shall be inconsistent with the use by RFTA, this License shall immediately cease
and terminate.
18. Licensee's Duty to Remove Encroachment Upon Termination. Within thirty days
after the abandonment or termination of this License, the Licensee, at Licensee's sole expense,
shall, if RFTA so desires the Licensee to do, remove the Encroachment and all its appurtenances
and restore or construct the premises of RFTA, including all right-of-way fences and drains, to a
condition which will be satisfactory to RFTA, and if the Licensee fails to do so, RFTA may do
such work of removal, restoration and construction at the expense of the Licensee. In the event of
the removal of the Encroachment as in this section provided, RFTA shall not be liable to the
Licensee for any damage sustained by Licensee for or on account of such removal, and such
removal shall not prejudice or impair any right of action for damages or otherwise which RFTA
may have against the Licensee.
19. License Non -Assignable. This License is personal to Licensee. The Licensee shall
not assign this License or any interest therein directly or indirectly voluntarily or involuntarily.
Upon any assignment or attempted assignment in violation of this paragraph, this License shall
terminate. The covenants, stipulations and conditions of this License shall extend to and be
binding upon RFTA and, if assigned with RFTA's written consent, its successors and assigns, and
shall extend to and be binding upon the Licensee and the heirs, administrators, executors,
successors and assigns of the Licensee.
20. BLM ROW COC 80772 — Temporary Use Permit (Exhibit B): Under the attached
Bureau of Land Management (BLM) Temporary Use Permit, the BLM has authorized construction
of a pedestrian bridge over and across public lands managed by the BLM in Section 6, Lot 26, T.
9 S., R 85 W., of the Sixth Prime Meridian, Colorado. Notwithstanding the BLM ROW COC
80772, Licensee understands and agrees that authorization of any and all development or
encroachment including, but not limited to, construction of the proposed pedestrian bridge inside
the "Corridor" rests solely with RFTA. Licensee further agrees that the Pitkin County Board of
County Commissioners, before or concurrently with execution of this License, will adopt an
ordinance (or as part of the ordinance authorizing Licensee to enter into this License) recognizing
that authorization of any and all development or encroachment including, but not limited to,
construction of the proposed pedestrian bridge inside the "Corridor" rests solely with
RFTA. Licensee understands and agrees that granting of this License is conditioned upon adoption
of the ordinance described in this section.
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21. No Recordation. It is understood and agreed that this License shall not be in
recordable form and shall not be placed on public record and any such recording shall be a breach
of this license.
22. Headings. The section headings contained in this License Agreement are inserted
for convenience only and are not intended to in any way affect the meaning or interpretation of
any such section or provision of this License Agreement.
23. Governing Law. This License Agreement shall be governed and construed in
accordance with the laws of the State of Colorado.
24. Amendments and Waivers. No amendment of any provision of this License
Agreement shall be valid unless the same shall be in writing and signed by RFTA. No waiver by
RFTA of any default or breach of any covenant or agreement hereunder shall be deemed to extend
to any prior or subsequent default or affect in any way any of RFTA's rights arising by virtue of
any prior or subsequent default.
25. Severability. Any term or provision of this License Agreement that is held by a
court of competent jurisdiction to be invalid or unenforceable shall not affect the validity or enforce
ability of the remaining terms and provisions of this License Agreement.
26. Entire Agreement. This License Agreement constitutes the entire agreement
between the parties and supersedes all prior understandings, agreements or representations among
them, written or oral, that may have related in any way to the subject matter hereof.
25. No Third -Party Beneficiaries. This License Agreement defines the rights and
duties of the parties hereto and may not be relied upon by any third party as the basis of a claim.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease Agreement.
LICENSOR, ROARING FORK
TRANSPORTATION AUTHORITY
COUNTY
By:
Angel
Property
Henderson, Assistant Director of
LESSEE, BOARD OF COUNTY
COMMISSIONERS OF PITKIN
anagement & Facilities Operations C
of Pitki
STATE OF COLORADO )
COUNTY OF GARFIELD )
ir, Board
ou
County Commissioners
ABBEY S. PASCOE
Notary Public
State of Colorado
Notary ID 0 20134039849
My Commission Expires 07-14.2025
The foregoing instrument was acknowledged before me this 9 day of
20 ,4, by Angela M. Henderson, Assistant Director, Property Management & Facilities
Operations, Roaring Fork Transportation Authority.
Witness my hand and official seal.
My commission expires _3 l l 4 b2
STATE OF cc real )
COUNTY OF P t )
°J1IN tary Public
Samantha Engen
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID# 20234045821
MY COMMISSION EXPIRES DECEMBER 7, 2027
The foregoing instrument was acknowledged before me this iD day of p
20 , by G . Board of County Commissioners
of Pitkin County.
Witness my hand and official seal.
My commission expires _j 2, .1
Encroachment License
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