HomeMy WebLinkAbout1.14 Draft SIASUBDIVISION IMPROVEMENTS AGREEMENT
SUNLIGHT PARKWAY PLANNED UNIT DEVELOPMENT
THIS SUBDIVISION IMPROVEMENTS AGREEMENT (SIA) is made and entered into
this _____ day of _______________, 2024 by and between SUNLIGHT PARKWAY, LLC, a
Colorado limited liability company (“Developer”) and the BOARD OF COUNTY
COMMISSIONERS OF COUNTY OF GARFIELD, acting for the County of Garfield, State of
Colorado, as a body politic and corporate, directly or through its authorized representatives and
agents (“BOCC”).
RECITALS
WHEREAS, Developer is the owner of the following described real property, situate in the
County of Garfield, State of Colorado, to-wit:
Lot 2,
Sunlight Parkway Minor Subdivision
According to the Amended Plat thereof recorded ___________, 2024 as
Reception No. ____________ of the Garfield County, Colorado records
(the “Property”).
WHEREAS, on June 19, 2023, the BOCC, by Resolution No. 2023-22, recorded as
Reception No. 986907 of the Garfield County, Colorado records, approved a planned unit
development rezoning request for the Property; and
WHEREAS, on _______________, 20__, the BOCC, by Resolution No. ____________,
recorded as Reception No. ___________ of the Garfield County, Colorado records, approved a
Preliminary Plan for the Property (“Preliminary Plan Approval”) which, among other things,
subdivides the Property into twelve (12) residential lots upon which six (6) duplex units are to be
constructed (“Subdivision”); and
WHEREAS, on _______________, 20___, the BOCC, by Resolution No. ___________,
recorded as Reception No. ___________ of the Garfield County, Colorado records, approved the
Final Plat of Sunlight Parkway Subdivision, recorded as Reception No. ___________ of the Garfield
County, Colorado records (“Final Plat”); and
WHEREAS, as a condition precedent to the approval of the Final Plat submitted to the
BOCC as required by the laws of the State of Colorado and by the Garfield County Land Use and
Development Code, as amended (“LUDC”), Developer wishes to enter into this SIA with the BOCC;
and
WHEREAS, Developer has agreed to execute and deliver security in a form satisfactory to
the BOCC to secure and guarantee Developer’s performance under this Agreement and has agreed
to certain restrictions and conditions regarding the sale of lots and the issuance of building permits
and certificates of occupancy within the Subdivision, as more fully set forth below.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing recitals and the mutual covenants and
promises contained herein, the BOCC and Developer (“Parties”) agree as follows:
1. Final Plat Approval. The BOCC hereby accepts and approves the Final Plat on the date
set forth above, subject to the terms and conditions of this SIA, the Preliminary Plan Approval and
the requirements of the LUDC and any other governmental or quasi-governmental regulations
applicable to the Subdivision (“Final Plat Approval”). Recording of the Final Plat in the Garfield
County, Colorado records shall be in accordance with this SIA and at the time prescribed herein.
2. Developer’s Performance as to Subdivision Improvements.
a. Completion Date/Substantial Compliance. Developer shall cause the
Subdivision Improvements identified in the exhibits defined in Subparagraph 2.a.i.
below (“Subdivision Improvements”) to be constructed and installed at Developer’s
expense, including payment of fees required by Garfield County and/or other
governmental and quasi-governmental entities with regulatory jurisdiction over the
Subdivision. The Subdivision Improvements shall be completed on or before the end
of the first full year following execution of this SIA (“Completion Date”), in
substantial compliance with the following:
i. Plans marked “Approved for Construction” for all Subdivision
Improvements prepared by ___________________________ and submitted
to the BOCC on __________________, such plans being summarized in the
list of drawings attached to and made a part of this SIA by reference as
Exhibit A; the estimate of cost of completion certified and bearing the stamp
of Developer’s professional engineer licensed in the State of Colorado
(“Developer’s Engineer”), attached to and made a part of this SIA by
reference as Exhibit B, which estimate includes an additional 10% of the
total for contingencies; and all other documentation required to be submitted
with the Final Plat under pertinent sections of the LUDC (“Final Plat
Documents”);
ii. All requirements of the Preliminary Plan Approval;
iii. All laws, regulations, orders, resolutions and requirements of Garfield
County and all special districts and any other governmental entity and quasi-
governmental authorities with jurisdiction; and
iv. The provisions of this SIA.
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b. Satisfaction of Subdivision Improvements Provisions. The BOCC agrees that
if all Subdivision Improvements are constructed and installed in accordance with this
Paragraph 2; the record drawings have been submitted upon completion of the
Subdivision Improvements as detailed in Paragraph 3(h) below; and all other
requirements of this SIA have been met, then Developer shall be deemed to have
satisfied all terms and conditions of the Preliminary Plan Approval, the Final Plat
Documents and the LUDC with respect to the installation of Subdivision
Improvements.
3. Security for Subdivision Improvements.
a. Subdivision Improvements Security and Substitute Collateral. As security for
Developer’s obligation to complete the Subdivision Improvements, Developer shall
deliver to the BOCC, on or before the date of recording of the Final Plat, a Letter of
Credit in the form agreed to be acceptable to the BOCC attached to and incorporated
in this SIA by reference as Exhibit C (“LOC”) or in a form consistent with the
Uniform Commercial Code, C.R.S. § 4-1-101, et.seq. and approved by the BOCC.
The LOC shall be in the amount of $___________, representing the full estimated
cost of completing the Subdivision Improvements and revegetation, together with a
10% contingency to cover cost changes, unforseen costs and other variables as set
forth and certified by Developer’s Engineer on Exhibit B, to guarantee completion
of the Subdivision Improvements. The LOC shall be valid for a minimum of six (6)
months beyond the Completion Date. The BOCC, at its sole option, may permit the
Developer to substitute collateral other than a Letter of Credit, in a form acceptable
to the BOCC, for the purpose of securing completion of the Subdivision
Improvements.
b. LOC Requirements and Plat Recording. The LOC required by this SIA shall
be issued by a state or national banking institution acceptable to the BOCC. If the
institution issuing the LOC is not licensed in the State of Colorado and transacting
business within the State of Colorado, the LOC shall be confirmed within the
meaning of the Uniform Commercial Code, Letters of Credit, C.R.S. § 4-5-101, et
seq., as amended, by a bank that is licensed to do business in the State of Colorado,
is doing business in Colorado and is acceptable to the BOCC. The LOC shall state
that presentation of drafts drawn under the LOC shall be at an office of the issuer or
confirmer located in the State of Colorado. The Final Plat shall not be recorded until
the security described in this Paragraph 3 has been received and approved by the
BOCC.
c. Extension of LOC Expiration Date. If the Completion Date is extended by
a written amendment to this SIA, the time period for the validity of the LOC shall be
similarly extended by the Developer. For each six (6) month extension, at the sole
option of the BOCC, the face amount of the LOC shall be subject to recertification
by Developer’s Engineer of the remaining cost of completion of the Subdivision
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Improvements, together with a 10% contingency on such remaining amount and
reviewed by the BOCC.
d. Unenforceable LOC. Should the LOC expire or become void or
unenforceable for any reason, including bankruptcy of the Developer or the financial
institution issuing or confirming the LOC prior to the BOCC’s approval of
Developer’s Engineer’s certification of completion of the Subdivision Improvements,
this SIA shall be voidable by action of the BOCC and upon such action this SIA shall
be of no further force and effect and the Final Plat shall be vacated pursuant to the
terms of this SIA.
e. Partial Releases of Security. Developer may request partial releases of the
LOC and shall do so by means of submission to the Building and Planning
Department of a “Written Request for Partial Release of LOC” in the form attached
hereto and incorporated by this reference as Exhibit D, accompanied by the
Developer’s Engineer’s stamped certificate of partial completion of improvements.
The Developer’s Engineer’s seal shall certify that the completed improvements have
been constructed in accordance with the requirements of this SIA, all Final Plat
Documents and the Preliminary Plan Approval. Developer may also request release
for a portion of the security upon proof that (1) Developer has a valid contract with
a public utility company regulated by the Colorado Public Utilities Commission
obligating such company to install certain utility lines; and (2) Developer has paid
to the utility company the cost of installation as required by the contract. The BOCC
shall authorize successive releases of portions of the face amount of the LOC as
portions of the Subdivision Improvements are certified as complete to the BOCC by
Developer’s Engineer and said certification is approved by the BOCC.
f. BOCC’s Investigation. Notwithstanding the foregoing, upon submission of
a Written Request for Partial Release of LOC, along with Developer’s Engineer’s
certificate of partial completion of improvements, the BOCC may review the
certification and may inspect and review and Subdivision Improvements certified as
complete to determine whether or not they have been constructed in compliance with
relevant specifications, as follows:
i. If no letter of potential deficiency is furnished to Developer by the
BOCC within fifteen (15) business days of submission of the Written Request
for Partial Release of LOC, accompanied by Developer’s Engineer’s
certificate of partial completion of improvements, all Subdivision
Improvements certified as complete shall be deemed approved by the BOCC
and the BOCC shall authorize release of the appropriate amount of security,
including the 10% contingency associated with such released portion;
ii. If the BOCC chooses to inspect and determines that all or a portion
of the Subdivision Improvements certified as complete are not in compliance
with the relevant specifications, the BOCC shall furnish a letter of potential
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deficiency to Developer within fifteen (15) business days of submission of
the Written Request for Partial Release of LOC;
iii. If a letter of potential deficiency is issued identifying a portion of the
certified Subdivision Improvements as potentially deficient, all Subdivision
Improvements not identified as potentially deficient shall be deemed
approved by the BOCC and the BOCC shall authorize release of the amount
of security related to the Subdivision Improvements certified as complete and
not identified as potentially deficient, together with the 10% contingency
associated with such released portion;
iv. With respect to Subdivision Improvements identified as potentially
deficient in a letter of potential deficiency, the BOCC shall have thirty (30)
days from the date of the letter of potential deficiency to complete the initial
investigation begun under Subparagraph 3.f.ii. above and provide written
confirmation of the deficiency(ies) to Developer; and
v. If the BOCC finds that the Subdivision Improvements are complete,
in compliance with the relevant specifications, then the appropriate amount
of security shall be authorized for release with ten (10) business days after
completion of such investigation.
g. BOCC Completion of Improvements and Other Remedies. If the BOCC finds
within the thirty (30) day period of time defined in Subparagraph 3.f.iv. above, that
the Subdivision Improvements are not complete or if the BOCC determines that
Developer will not or cannot construct any or all of the Subdivision Improvements,
whether or not Developer has submitted a Written Request for Release of LOC, the
BOCC may withdraw and employ from the LOC such funds as may be necessary to
complete construction of the Subdivision Improvements in accordance with the
specifications up to the face amount or remaining face amount of the LOC. In such
event, the BOCC shall make a written finding at a public meeting after notice to
Developer regarding Developer’s failure to comply with this SIA prior to requesting
payment from the LOC in accordance with the provisions of Article 13 of the LUDC.
The BOCC shall provide Developer a reasonable time to cure any identified
deficiency(ies), prior to requesting payment of the LOC.
h. Final Release of Security. Upon completion of all Subdivision
Improvements, Developer shall submit to the BOCC, through the Community
Development Department: (1) record drawings bearing the stamp of Developer’s
Engineer certifying that all Subdivision Improvements have been constructed in
accordance with the requirements of this SIA, all Final Plat Documents and the
Preliminary Plan Approval, in hard copy and digital format acceptable to the BOCC;
(2) copies of instruments conveying real property and other interests which
Developer is obligated to convey to the homeowner’s association of the Subdivision
at the time of Final Plat Approval; and (3) a Written Request for Final Release of
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LOC in the form attached to and incorporated herein as Exhibit E, along with
Developer’s Engineer’s stamp and certificate of final completion of improvements.
i. The BOCC shall authorize a final release of the LOC after the
Subdivision Improvements are certified as final to the BOCC by the
Developer’s Engineer and said final certification is approved by the BOCC.
If the BOCC finds that the Subdivision Improvements are complete in
accordance with the relevant specifications, the BOCC shall authorize release
of any remaining security within 10 business days following submission of
the Written Request for Final Release of LOC.
ii. Notwithstanding the foregoing, upon Written Request for Final
Release of LOC accompanied by Developer’s Engineer’s certificate of final
completion of improvements, the BOCC may inspect and review the
Subdivision Improvements certified as complete, in which event the process
described in Paragraph 3.f. above shall be followed.
iii. If the BOCC finds that the Subdivision Improvements are complete
in accordance with the relevant specifications, the BOCC shall authorize final
release of all remaining security within ten (10) days after completion of such
investigation.
iv. If the BOCC finds that the Subdivision Improvements are not
complete in accordance with the relevant specifications, the BOCC may
complete the remaining Subdivision Improvements in accordance with the
process set forth in Paragraph 3.g. above.
4. Revegetation. The costs for revegetation of disturbed areas in the Subdivision described
in Exhibit B are included in the LOC. That portion of the LOC relating to revegetation shall be
valid for a minimum of two (2) years following recording of the Final Plat. The provisions of
Paragraph 3 above shall apply to the security for revegetation; provided, however, all revegetation
must be completed prior to the release of any security associated therewith. Partial releases of the
security for revegetation shall not be allowed.
5. Water Supply and Wastewater/Sewer Collection. Prior to the BOCC’s issuance of any
certificates of occupancy for any residences or other habitable structures constructed within the
Subdivision, Developer shall install, connect and make operable a water supply and distribution
system for potable water, fire protection and a wastewater/sewer collection system in accordance
with Preliminary Plan Approval and the Final Plat Approval. All easements and rights-of-way
necessary for installation, operation, service and maintenance of such water supply and distribution
systems and wastewater/sewer collection system are as shown on the Final Plat. All facilities and
equipment associated with the water supply and distribution system and the wastewater/sewer
collection system shall be transferred by Developer to the homeowner’s association for the
Subdivision, by bill of sale, on or before termination of the Period of Declarant Control set forth in
the Declaration of Covenants, Conditions and Restrictions governing such homeowners’ association.
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6. Roads. All roads within the Subdivision shall be dedicated to the public as public rights-
of-way and shall be accepted by the BOCC, on behalf of the public, on the face of the Final Plat.
The homeowners association for the Subdivision shall be solely responsible for the maintenance,
repair and upkeep of said roads. The BOCC shall not be obligated to maintain any roads within the
Subdivision.
7. Public Utility Easements. Whether or not utility easements exist elsewhere in the
Subdivision, all road rights-of-way within the Subdivision shall contain rights-of-way for installation
and maintenance of utilities. Public utility easements shall be dedicated by the Developer to the
public utilities on the face of the Final Plat, subject to Garfield County Road Right-of-Way Use
Regulations, recorded as Reception No. 643477 in the records of the Garfield County Clerk and
Recorder, as amended. The homeowners association for the Subdivision shall be solely responsible
for the maintenance, repair and upkeep of said public utility easements, unless otherwise agreed with
the applicable public utility company. The BOCC shall not be obligated for the maintenance, repair
and upkeep of any utility easement within the Subdivision. In the event a utility company, whether
publicly or privately owned, requires conveyance of the easements dedicated on the face of the Final
Plat by separate document, Developer shall execute and record the required conveyance documents.
8. Road Impact Fees. Road Impact Fees will be paid in accordance with the LUDC.
9. School Land Dedication. Developer shall make a cash payment in lieu of dedicating
land to the RE-1 School District, calculated in accordance with the LUDC and the requirements of
State law. Developer and the BOCC acknowledge and agree that the cash in lieu payment for the
Subdivision shall be $_________________. Said fee shall be transferred by the BOCC to the school
district in accordance with the provisions of C.R.S. § 30-28-133, as amended, and the LUDC.
10. Sale of Lots. No lots, tracts, or parcels within the Subdivision may be separately
conveyed prior to recording the Final Plat creating such separate lots, tracts or parcels in the Garfield
County, Colorado records.
11. Indemnity. Developer shall indemnify, defend and hold the BOCC harmless from all
claims which may arise as a result of the Developer=s construction and installation of the Subdivision
Improvements, or any other agreement or obligation of Developer related to development of the
Subdivision. The Developer, however, does not indemnify the BOCC for claims made asserting that
the standards imposed by the BOCC are improper or are the cause of the injury asserted, or from
claims which may arise from the negligent acts or omissions of the BOCC or its employees. The
BOCC shall notify the Developer of receipt by the BOCC of a notice of claim or a notice of intent
to sue, and the BOCC shall afford the Developer the option of defending any such claim or action.
Failure to provide such notice and option to the Developer shall extinguish the BOCC=s rights under
this paragraph. Nothing in this paragraph shall be construed to constitute a waiver of governmental
immunity granted to the BOCC by Colorado statutes and case law.
12. Building Permits and Certificates of Occupancy. As one remedy for breach of this
SIA, the BOCC may withhold issuance of building permits for any residence or other habitable
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structure to be constructed within the Subdivision. No certificates of occupancy shall issue for any
habitable building or structure, including residences, within the Subdivision until all Subdivision
Improvements, except revegetation, have been completed and are operational as required by this SIA.
13. Consent to Vacate Plat. In the event the Developer fails to comply with the terms of
this SIA, the BOCC shall have the ability to vacate any Final Plat as it pertains to any lots for which
building permits have not been issued. As to lots for which building permits have been issued, the
Plat shall not be vacated and shall remain valid. In such event, the Developer shall provide the
BOCC a plat, suitable for recording, showing the location by surveyed legal description of any
portion of the Final Plat so vacated by action of the BOCC. If such a plat is not signed by the BOCC
and recorded, or if such plat is not provided by Developer, the BOCC may vacate the Final Plat, or
portions thereof, by resolution.
14. Vested Rights. The Final Plat constitutes a “Site Specific Development Plan” pursuant
to C.R.S. § 24-68-102(4) and Section 2-202.B of the Code. Approval and recordation of the Final
Plat shall create a vested property right pursuant to Article 68 of Title 24, C.R.S., as amended.
Accordingly, Developer’s right to undertake and complete development and use of the Property in
accordance with the Preliminary Plan Approval and Final Plat Approval shall be vested for a period
of three (3) years from the effective date of the BOCC’s approval of the Final Plat (the “Vested
Period”). The effective date of the BOCC’s approval of the Final Plat shall be the date public notice
of the BOCC’s approval of the Final Plat as a “Site Specific Development Plan” and the creation of
a vested property right pursuant to C.R.S. §§ 24-68-101 et.seq. is published in accordance with
C.R.S. § 24-68-103(1)(c) and Section 2-202.D.3 of the Code. The Vested Period may be extended
upon approval of the Board of County Commissioners, following a public hearing duly noticed in
accordance with Section 4-101.E of the Code.
15. Enforcement. In addition to any rights which may be provided by Colorado statute and
this SIA, it is mutually agreed by the BOCC and Developer, that the BOCC, without making an
election of remedies, and any purchaser of any lot within the Subdivision shall have authority to
bring an action in the Garfield County District Court to compel enforcement of this SIA. Nothing
in this SIA, however, shall be interpreted to require the BOCC to bring an action for enforcement
or to withhold building permits or certificates of occupancy or to vacate the Final Plat or a portion
thereof, nor shall this paragraph or any other provision of this SIA be interpreted to permit the
purchaser of a lot to file an action against the BOCC.
16. Recordation. This SIA shall be recorded in the Garfield County, Colorado records and
shall be a covenant running with title to all lots, tracts and parcels within the Subdivision and shall
constitute notice to prospective purchasers and other interested parties as to the terms and provisions
hereof.
17. Binding Effect. The rights and obligations contained herein shall be binding upon and
inure to the benefit of the successors and assigns of Developer and the BOCC.
18. Contract Administration and Notice Provisions. The representatives of Developer
and the BOCC, identified below, are authorized as contract administrators and notice recipients. All
notices required or permitted by this SIA shall be in writing and shall be deemed effective upon the
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date of delivery, or attempted delivery if delivery is refused. Delivery shall be made in person, by
certified return receipt requested U.S. Mail or receipted delivery service, addressed to the applicable
representative as set forth below:
Owner:Sunlight Parkway, LLC
P.O. Box 2317
Glenwood Springs, Colorado 81602
With copy to: Neil W. Goluba
Goluba & Goluba P.C.
P.O. Box 931
Glenwood Springs, Colorado 81602
County:Board of County Commissioners of
Garfield County, Colorado
c/o Community Development Director
108 8th Street, Suite 401
Glenwood Springs, Colorado 81601
19. Amendment and Substitution of Security. This SIA may be modified but only in
writing signed by the Parties hereto. Any such amendment, including, by way of example,
extensions of the Completion Date, substitution of the form of security, or approval of a change in
the identity of the security provider/issuer shall be considered by the BOCC at a scheduled public
meeting. Notwithstanding the foregoing, the Parties may change the identification of notice
recipients and contract administrators and the contact information provided in paragraph 18 above
in accordance with the provisions of that paragraph and without formal amendment of this SIA and
without consideration at a BOCC meeting.
20. Counterparts. This SIA may be executed in counterparts, each of which shall be
deemed an original, and all of which, when taken together, shall be deemed one and the same
instrument.
21. Venue and Jurisdiction. Venue and jurisdiction for any cause arising out of or related
to this SIA shall lie with the District Court of Garfield County, Colorado, and this Agreement shall
be construed according to the laws of the State of Colorado.
IN WITNESS WHEREOF, the Parties have signed this SIA to be effective upon the date
first set forth above.
BOARD OF COUNTY COMMISSIONERS
ATTEST:OF GARFIELD COUNTY, COLORADO
_________________________By: ________________________________________
Clerk to the Board Chairman
Date: __________________________
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SUNLIGHT PARKWAY, LLC,
a Colorado limited liability company
By: ______________________________________
Jason M. Neuman, Manager
Date: __________________________
STATE OF COLORADO )
)ss.
COUNTY OF GARFIELD )
Subscribed and sworn to before me by Jason M. Neuman, Manager of Sunlight Parkway,
LLC, a Colorado limited liability company this ___ day of __________________, 2024.
WITNESS my hand and official seal.
My commission expires: _______
__________________________________________
Notary Public
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EXHIBIT D
REQUEST FOR PARTIAL RELEASE OF LETTER OF CREDIT
Board of County Commissioners
Garfield County, Colorado
c/o Director of Community Development
108 8th Street, Suite 401
Glenwood Springs, Colorado 81601
RE: Sunlight Parkway Subdivision
Developer hereby notifies the BOCC of the completion of certain Subdivision Improvements
for the Sunlight Parkway Subdivision and requests that the BOCC approve a reduction in the face
amount of the Letter of Credit in the amount of $________________, in accordance with the
attached Engineer’s Certificate of Partial Completion. Upon said reduction, the face amount of the
Letter of Credit shall be $________________.
Attached is the certified original cost estimate and schedule of the completed Subdivision
Improvements, which reflects an amount of $_________________ attributable to the completed
Subdivision Improvements.
The completed Subdivision Improvements have been constructed in accordance with the
intent of the plans and specifications that were approved by the BOCC and referenced in the
Subdivision Improvements Agreement for the Subdivision.
Please contact ____________________, at _________________ with any questions you may
have or if further information is needed.
DEVELOPER
____________________________________
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EXHIBIT E
REQUEST FOR FINAL RELEASE OF LETTER OF CREDIT
Board of County Commissioners
Garfield County, Colorado
c/o Director of Community Development
108 8th Street, Suite 401
Glenwood Springs, Colorado 81601
RE: Sunlight Parkway Subdivision
Developer hereby notifies the BOCC of the completion of the Subdivision Improvements for
the Sunlight Parkway Subdivision and requests that the BOCC approve a full and final release of the
Letter of Credit in the amount of $________________, in accordance with the attached Engineer’s
Certificate of Completion.
Attached is the certified original cost estimate and schedule of the completed Subdivision
Improvements, which reflects that all required Subdivision Improvements have been completed.
The completed Subdivision Improvements have been constructed in accordance with the
intent of the plans and specifications that were approved by the BOCC and referenced in the
Subdivision Improvements Agreement for the Subdivision.
Also attached are the following documents required by the Subdivision Improvements
Agreement for the Subdivision (“SIA”):
1. Record drawings bearing the stamp of Developer’s Engineer certifying that all
Subdivision Improvements have been constructed in accordance with the
requirements of the SIA, both in hard copy and digital format acceptable to the
BOCC; and
2. Copies of any instruments conveying real property or other interests which Developer
was obligated to convey to the homeowner’s association or other entity in accordance
with Final Plat Approval.
Please contact ____________________, at _________________ with any questions you may
have or if further information is needed.
DEVELOPER
____________________________________
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