HomeMy WebLinkAboutBloom Filing Three - Filed DA-DEVELOPMENT AGREEMENT - RECEPTION#20250039823, 8/28/2025 1:39:45 PM,1 of 43,$43.00 Electronically Recorded
Tina Harris,Clerk&Recorder,Larimer County,CO
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF FORT COLLINS AND
PEDCOR INVESTMENTS, A LIMITED LIABILITY COMPANY AND PEDCOR
INVESTMENTS — 2023 — CLXXXVI, L.P.
THIS DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into on the
date of the last signature below, by and between the CITY OF FORT COLLINS,
COLORADO, a Municipal Corporation, hereinafter referred to as the "City;" and PEDCOR
INVESTMENTS — 2023 — CLXXXVI, L.P., an Indiana limited partnership, hereinafter
referred to as the "Developer;" and PEDCOR INVESTMENTS, A LIMITED LIABILITY
COMPANY, a Wyoming limited liability company, hereinafter referred to as the "Owner."
WITNESSETH:
WHEREAS, the Developer has entered into an agreement with the Owner to
acquire ownership of certain real property situated in the County of Larimer, State of
Colorado, (hereafter sometimes referred to as the "Property" or, in context with the
proposed improvements, as the "Development"), which Property is subject to a restrictive
covenant as provided in Special Warranty Deed recorded on January 21, 2025, at
Reception Number 20250002390 in the records of the Larimer County Clerk and
Recorder, and legally described as follows:
Bloom Filing Three, being a replat of Tract EE of Bloom Filing One, located in the
southwest quarter of Section 9, Township 7 North, Range 68 West of the 6th P.M.,
City of Fort Collins, County of Larimer, State of Colorado.
WHEREAS, the Development is known to the City as Bloom Filing Three, ID#
FDP250003; and
WHEREAS, the Property is subject to that certain Agreement to Secure Public
Benefits for Mulberry Development as Provided in Service Plan for Mulberry Metropolitan
District Nos. 1 through 6, dated June 1, 2021, recorded on August 15, 2022, at Reception
Number 20220050896 in the records of the Larimer County Clerk and Recorder (the
"Public Benefits Agreement" or "PBA"), which requires Mulberry Development, LLC (the
"Master Developer") and its successors, grantees and assigns to provide certain Public
Benefits as defined and required in the PBA; and
WHEREAS, on January 14, 2025, the Master Developer, City, and Owner entered
into that certain Contract Regarding Restrictive Covenants and For-Rent Required
Affordable Units, recorded on January 17, 2025, at Reception Number 20250002280 in
the records of the Larimer County Clerk and Recorder, which transferred certain of the
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Master Developer's obligations to the Developer regarding the provision of required for-
rent affordable housing units under the Public Benefits Agreement; and
WHEREAS, the Developer desires to develop the Property and has submitted to
the City all plats, plans, including utility plans, reports and other documents required for
the approval of a final plan according to the City's development application submittal
requirements list (the "Final Development Plan Documents") copies of which are on file
in the office of the City Engineer and made a part hereof by reference; and
WHEREAS, the parties hereto have agreed that the development of the Property
will require increased municipal services from the City in order to serve such area and will
further require the installation of certain improvements primarily of benefit to the Property
and not to the City of Fort Collins as a whole; and
WHEREAS, the City has approved the Final Development Plan Documents
submitted by the Developer, subject to certain requirements and conditions, which involve
the installation of and construction of utilities and other municipal improvements in
connection with the development of the Property.
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
I. General Conditions
A. The Recitals set forth above are hereby incorporated in and made a part of
this Agreement by this reference.
B. References to the City Code, Land Use Code, or other laws, regulations, or
rules shall include subsequent amendments thereto or adopted laws, regulations, or rules
intended to replace or otherwise supersede prior laws, regulations, or rules. This project
was reviewed and approved under the Transitional Land Development Regulations. The
Land Use Code references in this Agreement correspond to sections of the Transitional
Code. Notwithstanding, the foregoing language is not intended to alter or otherwise affect
valid vested rights except as may be provided for in § 24-68-1057 C.R.S. The term "City
Code" used herein shall mean the "Code of the City of Fort Collins," and the term "Land
Use Code" means the City of Fort Collins Transitional Land Development Regulations.
The City Code, Land Use Code, and City policies and plans under which this
Development is reviewed apply, and any updated codes apply to any subsequent
amendment to this Agreement.
C. The terms of this Agreement shall govern all development activities of the
Developer pertaining to the Property. For the purposes of this Agreement, "development
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activities" shall include, but not be limited to, the following: (1) the actual construction of
public and private improvements, (2) obtaining a permit therefor, or (3) any change in
grade, contour, use or appearance of the Property caused by, or on behalf of, the
Developer with the intent to construct improvements thereon.
D. Except as otherwise herein specifically agreed, all water, sanitary sewer,
and storm sewer lines, collection lines, facilities, and appurtenances, and all streets,
curbs, gutters, sidewalks, bike paths, and other public improvements required by this
Development shall be paid for and installed by the Developer as shown on the Final
Development Plan Documents and in full compliance with the standards and
specifications of the City on file in the office of the City Engineer at the time of approval
of the utility plans relating to the specific utility, subject to a three year time limitation from
the date of approval of the Final Development Plan Documents, as such limitation may
be extended pursuant to the Land Use Code. If the Developer commences or performs
any construction pursuant hereto after the passage of three years from the date of
approval of the Final Development Plan Documents, the Developer shall resubmit the
utility plans to the City Engineer for reexamination. The City may then require the
Developer to comply with the approved standards and specifications of the City on file in
the office of the City Engineer at the time of the resubmittal.
E. Unless otherwise approved by the City in its sole discretion, no building
permit for the construction of any structure within the Property shall be issued by the City
until the public water lines and stubs to each lot, fire hydrants, electrical lines, sanitary
sewer lines and stubs to each lot, and public streets (including curb, gutter, sidewalk, and
pavement with at least the base course completed) serving such structure have been
completed and accepted by the City. No building permits shall be issued for any structure
located in excess of 660 feet from a single point of access, unless the structures contain
sprinkler systems that are approved by the Poudre Fire Authority.
F. Any water lines, sanitary sewer lines, storm drainage lines, electrical lines,
and/or streets described on Exhibit A, attached hereto and incorporated herein by
reference, shall be installed within the time and/or sequence required on Exhibit A. If the
City Engineer has determined that any water lines, sanitary sewer lines, storm drainage
facilities, and/or streets are required to provide service or access to other areas of the
City, those facilities shall be shown on the Final Development Plan Documents and shall
be installed by the Developer within the time as established under"Special Conditions" in
this Agreement.
G. Street improvements shall not be installed until all utility lines (or conduits
therefor) to be placed therein have been completely installed, including all individual lot
service lines (water and sewer) leading in and from the main to the property line and all
electrical lines.
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H. The installation of all utilities shown on the Final Development Plan
Documents shall be inspected by the Engineering Department of the City and shall be
subject to such department's approval. The Developer agrees to correct any deficiencies
in such installations in order to meet the requirements of the plans and/or specifications
applicable to such installation. In case of conflict, the Final Development Plan Documents
shall supersede the standard specifications, except that if the conflicts are a result of
Federal or State mandated requirements, then the Federal or State mandated
requirements shall prevail.
I. Unless authorized by the City in writing and pursuant to law, the public right-
of-way shall not be used for staging or storage of materials, equipment, or construction
debris ("Staging") associated with the Development, nor shall it be used for parking by
any contractors, subcontractors, or other personnel working for or hired by the Developer
to construct the Development. The Developer shall find a location(s) on private property
to accommodate any necessary Staging and/or parking needs associated with the
completion of the Development. Information on the location(s) of these areas shall be
provided to the City as a part of the Development Construction Permit application.
J. Developments constructed with privately maintained streets shall be
constructed to the same design standards as those constructed on similar public rights-
of-way. Public easements shall be provided for access, utilities and drainage as required
by the design and location of such infrastructure and as reflected on the Final
Development Plan Documents. Alignment and grades on privately maintained streets
and drives shall allow for safe access, ingress and egress by owners, visitors, the general
public and public safety officials and equipment, as approved by the City Engineer.
K. All storm drainage facilities shall be designed and constructed by the
Developer so as to protect downstream and adjacent properties against injury and to
adequately serve the Property (and other lands as may be required, if any). The
Developer shall meet or exceed the minimum requirements for storm drainage facilities
as have been established by the City's Drainage Master Plans and Design Criteria. The
Developer, for itself and its successor(s) in interest, does hereby indemnify and hold
harmless the City from any and all claims that might arise, directly or indirectly, as a result
of the discharge of injurious storm drainage or seepage waters from the Property in a
manner or quantity different from that which was historically discharged and caused by
the design or construction of the storm drainage facilities, except for (1) such claims and
damages as are caused by the acts or omissions of the City in maintenance of such
facilities as have been accepted by the City for maintenance; (2) errors, if any, in the
general concept of the City's master plans (but not to include any details of such plans,
which details shall be the responsibility of the Developer); and (3) specific written or
otherwise documented directives that may be given to the Developer by the City. No
language in this Subsection shall be construed or interpreted as establishing in any way
the City's liability for any act or omission and the terms of this Subsection solely relate to
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the Developer's obligation to indemnify and hold harmless the City. The City agrees to
give notice to the Developer of any claim made against it to which this indemnity and hold
harmless agreement by the Developer could apply, and the Developer shall have the right
to defend any lawsuit based on such claim and to settle any such claim provided
Developer must obtain a complete discharge of all City liability through such settlement.
Failure of the City to give notice of any such claim to the Developer within 90 days after
the City first receives a notice of such claim under the Colorado Governmental Immunity
Act for the same, shall cause this indemnity and hold harmless agreement by the
Developer to not apply to such claim and such failure shall constitute a release of this
indemnity and hold harmless agreement as to such claim. Approval of and acceptance
by the City of any storm drainage facility design or construction shall in no manner be
deemed to constitute a waiver or relinquishment by the City of the aforesaid
indemnification. The Developer shall engage a Colorado licensed professional engineer
to design the storm drainage facilities as aforesaid and it is expressly affirmed hereby that
such engagement shall be intended for the benefit of the City, and subsequent purchasers
of property in the Development.
L. The Developer shall provide the City Engineer with certified Record Plan
Transparencies ("as-built drawings") by electronic file upon completion of each phase of
the construction. Utilities will not be initially accepted prior to as-built drawings being
submitted to and approved by the City.
M. The Developer specifically represents that to its knowledge all property
dedicated (both in fee simple and as easements) to the City associated with this
Development (whether on or off-site) is in compliance with all environmental protection
and anti-pollution laws, rules, regulations, orders and requirements, including solid waste
requirements, as defined by the U. S. Environmental Protection Agency Regulations at
40 C.F.R., Part 261. The Developer further represents that the property as is dedicated
to the City pursuant to this Development, is in compliance with all requirements pertaining
to the disposal or existence in or on the dedicated property of any hazardous substances,
pollutants or contaminants, as defined by the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, and regulations promulgated
thereunder. The Developer, for itself and its successor(s) in interest, does hereby
indemnify and hold harmless the City from any liability whatsoever that may be imposed
upon the City by any governmental authority or any third party, pertaining to the disposal
of hazardous substances, pollutants or contaminants, and cleanup necessitated by
leaking underground storage tanks, excavation and/or backfill of hazardous substances,
pollutants or contaminants, or environmental cleanup responsibilities of any nature
whatsoever on, of, or related to any property dedicated to the City in connection with this
Development. This indemnity and hold harmless agreement applies to damages or
liability not caused by circumstances arising entirely after the date of acceptance by the
City of the public improvements constructed on the dedicated property, except to the
extent that such circumstances are the result of acts or omissions of the Developer.
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Indemnification shall not extend to claims, actions, or other liability arising as a result of
any hazardous substance, pollutant, or contaminant generated or deposited by the City,
its agents, or representatives, upon the property dedicated to the City in connection with
this Development. The City agrees to give notice to the Developer of any claim made
against it to which this indemnity and hold harmless agreement by the Developer could
apply, and the Developer shall have the right to defend any lawsuit based on such claim
and to settle any such claim provided the Developer must obtain a complete discharge of
all City liability through such settlement. Failure of the City to give notice of any such
claim to the Developer within 90 days after the City first receives a notice of such claim
under the Colorado Governmental Immunity Act for the same, shall cause this indemnity
and hold harmless agreement by the Developer to not apply to such claim, and such
failure shall constitute a release of this indemnity and hold harmless agreement as to
such claim.
N. The Developer acknowledges and agrees that the City, as the owner of any
adjacent property (the "City Property") on which off-site improvements may be
constructed, or that may be damaged by the Developer's activities hereunder, expressly
retains (and does not by this Agreement waive) its rights as property owner. The City's
rights as owner of the City Property may include without limitation those rights associated
with the protection of the City Property from damage, and/or the enforcement of
restrictions, limitations and requirements associated with activities on the City Property
by the Developer as an easement recipient.
O. If the Developer or contractor or any agent or representative thereof causes
damage to any public infrastructure (including without limitation, any surface pavers,
flagstones, or other stone or concrete surfaces, planters, street and decorative lights, or
canopies) such damage shall be promptly repaired with the same kind, quality, color,
serviceability and material composition aspects as was possessed by the infrastructure
damaged, unless otherwise expressly agreed to by the City in writing.
P. Future development of any lot(s) within the Property shall require the
Developer or its successor(s) in interest to enter into a new development agreement(s)
with the City governing the development of such Iot(s). The Developer or its successor(s)
in interest and the City may enter into a new development agreement(s)without amending
this Agreement and without the consent of other parties to this Agreement other than the
City, as long as the new development agreement(s) does not alter or otherwise contradict
the provisions of this Agreement that are applicable to the other parties.
Q. A determination of adequacy for the supply of potable and non-potable
water, where applicable, has been found by the City based on evidence and information
provided by the Developer and the water service provider, as required by the Land Use
Code. Any change in the water supply or demand (i.e., changes in land use or
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landscaping) may be subject to revision of that finding, and a review of the water supply
requirements by the water service provider.
R. Before final acceptance of improvements and release of final guarantee, the
Developer shall ensure that all land, improvements, and facilities intended to be owned,
operated, and maintained by one or more owners associations or metropolitan districts,
are fully conveyed to the appropriate entity. With such conveyance, a copy of all final or
as-built drawings for any development, construction, building, and landscaping plans, and
operations and maintenance plans, manuals, and other information shall be provided by
the Developer to said entities, to include but not be limited to: stormwater facilities, private
drives, parking areas, open space, parks, trails, natural hazard buffer zones, and irrigation
systems.
S. Landscaping watering and maintenance in public right-of-way shall be the
responsibility of the Developer.
II. Special Conditions
A. Public Benefits Agreement
The City and the Master Developer previously entered into the Public
Benefits Agreement, which requires the Master Developer to fund, develop, construct,
and/or install certain Public Benefits as defined and required in the PBA. Further, in
accordance with the introductory provisions of the PBA, the "timing and requirements
related to the provision of certain of the Public Benefits ... shall be delivered through
approved Final Plans and related Development Agreements entered into as part of the
development review approval of each phase of the Project."
Under the Public Benefits Agreement Subsection II.C., the Master
Developer's PBA obligations run with the Property and are binding on the Developer for
this Development. Those PBA obligations are enumerated in this Subsection II.A. The
language contained in this Agreement related to Public Benefits is intended to carry out
the rights and responsibilities set forth in the PBA and is not intended to alter or otherwise
supersede the terms of the PBA. In the event of a conflict between this Agreement and
the PBA, the PBA shall control.
1. Affordable Housing
Section 1.B.1 of the Public Benefits Agreement requires the Master
Developer to meet certain requirements related to affordable housing. On January 14,
2025, the Master Developer, City, and Owner entered into that certain Contract Regarding
Restrictive Covenants and For-Rent Required Affordable Units, recorded on January 17,
2025, at Reception Number 20250002280 in the records of the Larimer County Clerk and
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Recorder (the "Contract"), which transferred the Master Developer's obligations for 264
of the for-rent required affordable units to the Owner, or an affiliate thereof. The Contract
Regarding Restrictive Covenants and For-Rent Required Affordable Units provides that
the Owner, or an affiliate thereof, will develop the Property pursuant to future approved
final development plans (this Agreement) and will provide for-rent affordable housing units
subject to the covenants in that Contract, the special warranty deed transferring the
Property, and the PBA.
Provision of Affordable Units
a. The Developer shall construct and maintain 264 dwelling units
within the Development as affordable rental units ("Affordable
Units"), each of which shall be affordable to households
earning at or below 60% of the Area Median Income (AMI),
consistent with the provisions of Section 1.B.1.a. of the Public
Benefits Agreement.
b. The Affordable Units may utilize the average income
approach as permitted under Low-Income Housing Tax Credit
(LIHTC) rules, provided that the average AMI for the
Affordable Units does not exceed 60%, calculated using the
averaging methodology adopted by the Colorado Housing
and Finance Authority in effect at the time the affected
Affordable Units are determined by the City to count toward
the Required Affordable Units as defined in Section 1.B.1.a. of
the PBA.
Affordability Period and Restrictions
a. The affordability of each Affordable Unit shall be maintained
for a period of at least 20 years from the date the LIHTC Land
Use Restriction Agreement is fully executed.
b. The Affordability Restrictions shall be as provided in Section
A of the Contract.
Compliance and Reporting
a. The Developer shall manage and operate the Affordable Units
in compliance with all applicable LIHTC rules and regulations,
including tenant income certification and rent restrictions.
b. The Developer shall submit annual compliance reports to the
City, in a form acceptable to the City, verifying that the
Affordable Units are occupied by qualifying households and
that the affordability restrictions are being maintained. Annual
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Compliance Reporting is due to the City Manager's Office
within 90 days after the end of each calendar year, with the
first such compliance report to be filed the year following the
Development being placed in service.
Integration
a. The Affordable Units shall be integrated within the
Development in a manner consistent with the overall design
and layout, as approved in the Final Development Plan
Documents.
b. The disbursement requirements of the PBA do not apply to
the Required Affordable Units offered for rent. Any units that
are sold as part of this Development shall not be counted
toward the minimum of 40 "dispersed site" units as defined in
Section I.B.1.a. of the PBA.
Contribution to Overall Requirements
a. The anticipated 264 Affordable Units provided in this
Development shall count towards the total Required
Affordable Units, specifically contributing to the for-rent
portion of the requirement.
2. Critical Infrastructure
This section is not applicable to the Development. Refer to the status
of the Critical Infrastructure requirements as outlined in the Filing Two Development
Agreement.
3. High-Quality and Smart Growth Elements
This section is not applicable to the Development.
4. Environmental Sustainability
Section 1.B.4 of the Public Benefits Agreement requires the Developer to
meet certain requirements related to the funding and/or construction of specified
environmental sustainability improvements.
a. Solar Photovoltaic Energy
In accordance with the PBA requirements for Solar
Photovoltaic Energy, the Developer shall design, install, and
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commission a roof-mounted solar photovoltaic system
capable of generating a minimum of 600 kilowatts (kW) of
alternating current electric power (the "Solar Power
Generation System"). This system shall contribute to fulfilling
the Master Developer's obligation to provide a minimum of
800 kW of solar power generation capacity as required by the
PBA. The Solar Power Generation System shall be certified
by either (i) a licensed, independent, third-party electrical
engineer or solar professional, or (ii) an agent or
representative of the City, in accordance with the City's
requirements. The Developer shall submit documentation
satisfactory to the City, certifying that the Solar Power
Generation System will be owned, operated, and maintained
by the owner of the property on which the system is located
(the "Owner's Certification"). The installation and certification
of the Solar Power Generation System shall be completed
before the issuance of certificates of occupancy for more than
50% of the "Total Dwelling Units" (as defined in Section
1.B.1.a. of the PBA), thereby satisfying the stipulation in
Section 1.B.4.a. of the PBA that before the City issues any
certificate of occupancy for more than 50% of the Total
Dwelling Units, the City must receive certification for a
minimum of 400 kW of certified solar power generation
capacity.
b. Non-Potable Irrigation System
The Master Developer has designed and constructed a non-
potable water system (the "Non-Pot Water System") to
provide irrigation water to all natural areas and private lots
within the Development. The Non-Pot Water System will be
used to provide irrigation water to landscape areas within this
Development.
C. Sustainable Landscape Design
This section is not applicable to the Development.
d. Enhanced Community Resiliency
The Master Developer is required to meet certain obligations
related to enhanced community resiliency as set forth in
Section 1.B.4.d of the PBA:
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i. "Improvements to the Cooper Slough to reduce runoff
and lower peak flows through upstream planting and
mitigation."
This section is not applicable to the Development.
ii. "Improvements to Lake Canal to help bring it out of the
current flood plain."
This section is not applicable to the Development.
iii. "Landscape architecture designed to support the flight
distances and migration patterns of applicable
pollinators."
The Development carries forth the direction
established within the Bloom Pollinator Master Plan
created as part of Filing One. This Bloom Pollinator
Master Plan provides guidance for pollinator design
within each phase while considering the whole of
Bloom. This includes:
• Clustering habitats and making sure they are in
proximity to each other to encourage ease of travel
and use by pollinators;
• Placing habitat in areas with good sun exposure;
• Use of a diverse palette of pollinator-friendly plants
to provide good foundation of habitat that provides
continuous blooms in spring, summer, and fall and
the implementation of a variety of colors that
pollinators are attracted to;
• Attention to the use of plants that attract a full range
of pollinators that live in Colorado or migrate
through.
Pollinator habitats have been integrated into the overall
landscape design theme of the project, improving
habitat, and providing food and shelter opportunities.
B. Water Lines
The Property will be provided water service from the East Larimer County
Water District ("Water District"), and all water line improvements shall be installed and
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inspected in accordance with the Water District's regulations and the approved plans
therefor.
C. Sewer Lines
The Property will be provided sanitary sewer service from the Boxelder
Sanitation District ("Sewer District"), and all sewer line improvements shall be installed
and inspected in accordance with the Sewer District's regulations and the approved plans
therefor.
D. Storm Drainage Lines and Appurtenances
1. The Developer agrees to provide and maintain erosion and sediment
control improvements as shown on the Final Development Plan Documents until all
disturbed areas in and adjacent to this Development's construction activities are
stabilized. The Developer shall also be required to post a security deposit in the amount
shown in the Final Development Plan Documents before beginning construction to
guarantee the proper installation and maintenance and, upon completion, removal of the
erosion and sediment control measures shown on the Final Development Plan
Documents. Said security deposit(s) shall be made in accordance with the criteria set
forth in the Stormwater Criteria Manual referenced at City Code § 26-500 and in the Dust
Prevention and Control Manual referenced in City Code § 12-152, hereinafter the
Stormwater Criteria Manual and the Dust Prevention and Control Manual shall be
collectively referred to as the "Criteria." When said security deposit(s) is a letter of credit
or a bond the Developer shall replace the security no later than 30 days before its
expiration date. If the security posted by the Developer is a Letter of Credit, and such
Letter of Credit has not been replaced or renewed within 30 days of its expiration date,
the City may elect to draw and hold the funds as it sees fit. The City shall have the option
in any case to also withhold building permits and certificates of occupancy, as stated in
Paragraph III.D of this Agreement, as it deems necessary in order to ensure that at all
times the Developer is maintaining appropriate levels of security to guarantee completion
of the erosion and sediment control improvements. If, at any time, the Developer fails to
abide by the erosion control provisions of the Final Development Plan Documents or the
erosion control provisions of the Criteria after receiving notice of the same or an
emergency situation exists which would reasonably require immediate mitigation
measures, then, in either event, and notwithstanding any provisions contained in
Paragraph III.J to the contrary, the City may enter upon the Property for the purpose of
making such improvements and undertaking such activities as may be necessary to
ensure that the provisions of said plans and the Criteria are properly enforced. The City
may apply such portion of the security deposit(s) as may be necessary to pay all costs
incurred by the City in undertaking the administration, construction, and/or installation of
the erosion control measures required by the Final Development Plan Documents and
the Criteria. In addition, the City shall have the option to withhold building permits and
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certificates of occupancy, as stated in Paragraph III.D of this Agreement, as it deems
necessary in order to ensure that the Developer installs, maintains, and ultimately
removes the erosion and sediment control measures throughout the build-out of this
Development. When identified,_ any violations of applicable laws, regulations, or policies
regarding erosion and sediment control are to be corrected immediately per Part I.D.8 of
the Developer's Colorado Discharge Permit System ("CDPS") Permit for Stormwater
Discharges Associated with Construction Activity as required by the Colorado Department
of Public Health and Environment ("CDPHE"), City Code § 26-498, Water Quality Control,
and City Code § 12-153, Prevention of Fugitive Dust Emissions. If no CDPS Permit is
required, violations of any applicable laws, regulations, or policies regarding erosion and
sediment control are to be corrected immediately as required by the CDPHE and the
Environmental Protection Agency (EPA) in accordance with the Clean Water Act, City
Code § 26-498, Water Quality Control, and City Code § 12-153, Prevention of Fugitive
Dust Emissions. Failure to correct any violation shall prevent the Developer from building
in any future phases until fully corrected. Upon stabilization of the disturbed areas, and
upon the request of the Developer, the City will confirm that the Property is stabilized from
potential erosion and sediment discharges and fugitive dust emissions resulting from
construction activities and that all temporary erosion and sediment and dust control
measures used by the Developer are removed. Upon confirmation by the City that the
Property is stabilized, any remaining portions of the security deposit that is associated
with the adequate maintenance of erosion and sediment control improvements shall be
returned to Developer.
2. Unless otherwise approved by the City in its sole discretion and
subject to Developer posting a security deposit, in form acceptable to City, for the cost of
completion of storm drainage improvements to be completed subsequent to the issuance
of any certificate of occupancy, all on-site and off-site storm drainage improvements
associated with this Development, as shown on the Final Development Plan Documents,
shall be completed by the Developer, unless completed by others, in accordance with
said Final Development Plan Documents prior to the issuance of any certificate of
occupancy. Completion of improvements shall include the certification by a Colorado
licensed professional engineer that the drainage facilities that serve this Development
have been constructed in conformance with said Final Development Plan Documents.
Said certification shall be submitted to the City for review and acceptance at least two
weeks prior to the issuance of any certificate of occupancy in this Development. This
includes the off-site regional detention pond G1, which will be built by others, but must be
certified before any certificates of occupancy are issued for this Development, subject to
the above.
3. For private permanent water quality improvements located on private
property associated with this Development (the "Private Water Quality Improvements"),
on-site inspection by a City Inspector is required to verify the proper installation of such
improvements at different stages of construction as specified in the "Overall Site and
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Drainage Certification"form. In the event of non-compliance, the City Inspector shall have
the option to withhold building permits and/or certificates of occupancy. In addition, the
City may avail itself of any other legal remedy that may be provided in the City Code, the
Land Use Code and/or this Agreement, as deemed necessary in order to ensure that the
Developer or its successor(s) in interest properly installs and maintains the Private Water
Quality Improvements as specified in the Final Development Plan Documents.
4. The Developer or its successor(s) in interest shall be responsible for
maintaining the structural integrity and operational function of all drainage facilities
constructed as part of this Development including, but not limited to, all drainage facilities
and water quality features, extended detention water quality basins, bioretention facilities
and/or permeable pavement systems. These drainage facilities and/or features must be
maintained in their original operational integrity throughout the build-out of this
Development, following the completion of the construction of said facilities and features,
and after acceptance of said facilities and features as certified to the City. If at any time
following construction and certification (as required pursuant to Paragraph I I.D.2 above)
or during the construction of additional structures and/or lots within this Development, the
City determines that said drainage facilities and features no longer comply with the Final
Development Plan Documents, the City may give written notice to the Developer of all
items that do not comply with the Final Development Plan Documents and request the
restoration of the drainage facilities and features back to the function, standards and
specifications designed and specified in the Final Development Plan Documents. Failure
to maintain the structural integrity and operational function of said drainage facilities and
features following certification will result in the withholding of the issuance of additional
building permits and/or certificates of occupancy and, in addition, the City may avail itself
of any other legal remedy that may be provided in the City Code, the Land Use Code
and/or this Agreement until said drainage facilities and water quality features are repaired
and restored to the physical characteristics, operational function and structural integrity
originally specified in the Final Development Plan Documents approved by the City for
this Development.
5. All lots must be graded to drain in the configuration shown on the
Final Development Plan Documents. For this reason, the following requirements shall be
followed for all buildings/structures on all lots. Before the issuance of a certificate of
occupancy for any lot or building, the Developer shall provide the City with certification
that the lot and/or the building has been graded in compliance with the Final Development
Plan Documents. This grading certification shall:
a. Demonstrate that the lot or building finish floor elevation has been
built in accordance with the elevation specified on the Final
Development Plan Documents.
b. Show that the minimum floor elevation or minimum opening
elevation for any building constructed is in compliance with the
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minimum elevation as required on the Final Development Plan
Documents.
c. Demonstrate that any minor swales adjacent to the building or on
the lot have been graded correctly and in accordance with the
grades shown on the Final Development Plan Documents.
d. Show that the elevations of all corners of the lot are in accordance
with the elevations shown on the Final Development Plan
Documents.
e. Be completed by a Colorado licensed professional engineer and
shall be submitted to the City for review and acceptance at least
two weeks before the requested date of issuance of the
applicable certificate of occupancy.
6. The Developer shall obtain the City's prior approval of any changes
from the Final Development Plan Documents in grade elevations and/or storm drainage
facility configuration that occur as a result of the construction of buildings and/or
development of lots, whether by the Developer or others. The City reserves the right to
withhold the issuance of building permits and certificates of occupancy for this
Development until the City has deemed such changes as being acceptable for the safe
and efficient delivery of storm drainage water.
7. The Developer shall limit the construction of the off-site storm
drainage improvements to the limits of construction as shown on the Final Development
Plan Documents. The Developer shall re-seed and/or restore all areas that are disturbed
during construction of the off-site storm drainage improvements in accordance with the
Final Development Plan Documents promptly following construction. The Developer shall
ensure that no negative impact occurs to the adjoining properties during the construction
of these facilities. No grading shall be done outside of the approved areas as shown on
the Final Development Plan Documents.
8. Developer's drainage design for this Development includes
evacuation of storm drainage runoff through a bioretention facility and into the drainage
outfall system in a reasonable amount of time. The bioretention facility has been designed
to discharge stormwater runoff from frequent storms over a 12-hour period. Under the
intended operation of the bioretention facility, there will not be standing water in the facility
more than 24 hours after the end of a rainfall event. If after construction and acceptance
of the bioretention facility associated with this Development, surfacing or standing water
conditions persist in this facility, and if such conditions are beyond what can be expected
in accordance with the approved stormwater design, the Developer shall promptly, upon
such discovery, take appropriate action in order to return or modify (subject to City's
approval of any such modification) the facility to function in accordance with the designed
operation in accordance with the Final Development Plan Documents.
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9. The Developer shall be responsible for maintenance of all storm
drainage facilities not identified as public in the Final Development Plan Documents in
accordance with the Standard Operating Procedures (SOPs) for Stormwater contained in
Exhibit C, attached hereto and incorporated herein by reference.
E. Streets
1. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along International
Boulevard for those portions of said public street abutting the Property as shown on the
Final Development Plan Documents. Reimbursement for International Boulevard shall
be for increasing the sidewalk and parkway width from local access standards to minor
arterial standards. The City shall make reimbursement to the Developer for the aforesaid
oversized street improvements in the manner provided in and in accordance with City
Code Section 24-112. As identified in the City Code, the City shall not participate in the
cost of transportation improvements required solely for the special use and benefit of the
Development required by the transportation impact study for the Development, or by the
City Traffic Engineer. The Developer acknowledges that the City shall have no obligation
to make reimbursement payments for street oversizing unless funds for such payments
are budgeted and appropriated from the transportation improvements fund by the City
Council. The Developer does hereby agree to construct the aforesaid oversized street
improvements with the understanding that the Developer may not be fully reimbursed by
the City for the cost of such construction. The Developer further agrees to accept
payment in accordance with City Code Section 24-112(d) as the full and final settlement
and complete accord and satisfaction of all obligations of the City to make
reimbursements to the Developer for street oversizing expenses.
2. It is understood that the improvements that are to be constructed in
the public right-of-way as described in this Section II.E are "City improvements" (as
defined below) and, as such, any contract for the construction of the same must be
executed in writing. If the cost of such improvements exceeds the sum of $60,000, the
contract for the construction of the same must be submitted to a competitive bidding
process resulting in an award to the lowest responsible bidder; and evidence must be
submitted to the City before the commencement of the work showing that the award was
given to the lowest responsible bidder. If the cost of such improvements exceeds
$100,000, the contract for the construction of the improvements must be insured by a
performance bond or other equivalent security. For purposes of this Paragraph, the term
"City improvements" shall mean either (1) existing improvements owned by the City that
are to be modified or reconstructed, or (2) any improvements funded in whole or in part
by the City.
3. The pavement design and construction standards for privately
maintained streets shall be the same as the standards for public streets. Grades,
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alignments, and widths may be modified in accordance with accepted design principles,
only on the condition that safe access is maintained for all future owners, visitors, the
general public and public safety officials and equipment. Such modifications from public
street standards may be made only if approved by the City Engineer. Easements for
access, utilities, and drainage shall be dedicated to the public and clearly shown on the
plat.
4. As identified in Article III, Chapter 23 of the City Code
("Encroachments") no encroachments or obstructions are allowed within the public rights-
of-way without a permit ("Encroachment Permit"). The Developer understands and
acknowledges that if the Final Development Plan Documents now or in the future, through
an amendment process, include any encroachments or obstructions in the public rights-
of-way the Developer shall apply for, meet any requirements or conditions, and obtain an
approved Encroachment Permit before the installation of the encroach ment(s).
a. All requirements and conditions as identified on the
Encroachment Permit and identified as Encroachments shall
be met and maintained both before and after issuance of the
Encroachment Permit. The Encroachment Permit, which is
non-transferable, is issued to the Property owner or to the
lessee of the Property (with the Property owner's consent) in
which the encroachment is adjacent to or benefits and the
Developer understands that at such time as ownership of that
parcel changes and/or a new lessee exists (as applicable) a
new encroachment permit will need to be applied for and new
liability insurance will need to be provided by the new Property
owner or new lessee. The permit is revocable pursuant to
Chapter 23 of City Code.
b. The Developer, for itself and its successor(s) in interest, does
hereby release and hold harmless the City from any damages
to the encroachment arising from the City's actions in
maintaining, repairing and/or replacing the public
infrastructure including utilities, except as caused by the City's
gross negligence or willful misconduct.
C. The City shall have no responsibility for the installation and
maintenance of any encroachment and the Developer, for
itself and its successor(s) in interest, does hereby indemnify
and hold harmless the City from any and all claims that might
arise, directly or indirectly, as a result of the Developer's
installation or maintenance of any encroachments onto the
public right-of-way.
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d. Only public utilities (defined as utilities owned and maintained
by the City and gas utilities owned by Xcel Energy) or utility
providers that have a franchise agreement with the City are
allowed to be installed and located within public rights-of-way
and public easements. Private utilities are allowed to cross
public rights-of-way and easements provided that the crossing
is perpendicular to the public right-of-way or easement, that
sleeves are provided for the crossing in accordance with City
standards, encroachment permits for such crossing are
obtained, and the utility is registered with the utility locate
center. Any private utilities found within public rights-of-way or
easements not meeting the above criteria serving the
Property shall be required to be removed by the Developer at
the Developer's expense or apply for and obtain an approved
Encroachment Permit. All sleeves across the right-of-way
shall be designed and installed in accordance with City
standards then in effect.
e. If there is any conflict between this provision and the
Encroachment Regulations, then the Encroachment
Regulations will control. The Developer acknowledges that,
as with any regulation, the Encroachment Regulations are
subject to change and Developer agrees to abide by any
changes to the Encroachment Regulations.
5. Notwithstanding any provision herein to the contrary, the Developer
shall be responsible for all costs for the initial installation of traffic signing and striping for
this Development, including related to the Developer's internal street operations and of
any adjacent or adjoining local, collector or arterial streets that is made necessary
because of the Development.
6. Following completion of all public infrastructure improvements, the
Developer shall continue to have responsibility for maintenance and repair of said
improvements in accordance with the Land Use Code.
F. Natural Resources
1. The Developer will adhere to the Bloom Filing One Pollinator Master
Plan (included in the Final Development Plan Documents). The designated pollinator
resources found in the Development will be maintained according to the maintenance
guidelines included in the Pollinator Master Plan, the associated Pollinator Resource
Maintenance Plan, and applicable Mulberry Metropolitan District Nos. 1-6 guidelines for
the life of the Development.
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2. Fueling facilities shall be located at least 100 feet from any natural
body of water, wetland, natural drainage way or manmade drainage way. The fuel tanks
and fueling area must be set in a containment area that will not allow a fuel spill to directly
flow, seep, run off, or be washed into a body of water, wetland or drainage way. Fueling
facilities not in compliance shall be moved at the Developer's expense.
3. The Developer shall delineate the Development's property boundary
adjacent to all Limits of Development (L.O.D.) as defined by Land Use Code Section 5.1.2
and Section 3.4.1(N), including boundaries around existing trees that are to be
undisturbed, with orange construction fence before any type of construction, including
over lot grading.
G. Forestry
A Street Tree Permit must be obtained from the City Forester pursuant to
City Code, before any trees or shrubs noted on the Final Development Plan Documents
are planted, pruned, or removed in public right-of-way. This includes areas between
the sidewalk and curb, medians, and other City property. This permit from the City
Forester shall approve the location and species to be planted. Failure to obtain this permit
is a violation of City Code subject to citation (Section 27-31) and may also result in
replacing or relocation of trees and a hold on the issuance of the Developer's certificate
of occupancy.
H. Soil Amendment
Unless otherwise approved by the City, in all areas associated with this
Development that are to be landscaped or planted in accordance with the Final
Development Plan Documents, and do not require a building permit, the soils shall be
loosened and amended by the Developer in accordance with Land Use Code § 3.8.21
prior to the issuance of a Certificate of Occupancy in this Development. Unless otherwise
approved by the City, in all areas associated with this Development that are to be
landscaped or planted in accordance with the Final Development Plan Documents, and
do require a building permit, the completion of soil amendments shall include certification
by the Developer that the work has been completed in accordance with City Code
§ 12-132. This certification shall be submitted to the City for review and acceptance at
least two weeks prior to the date of issuance of any certificate of occupancy in this
Development, unless otherwise approved by the City in its sole discretion and subject to
Developer posting a security deposit, in form acceptable to City, for the cost of completion
of landscaping, plantings and/or soil amendments to be completed subsequent to the
issuance of any certificate of occupancy.
I. Parks
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The Developer, or its successor(s) in interest, shall be responsible for the
ongoing irrigation and maintenance of the landscaping located within the public right-of-
way along the portion of International Boulevard that abuts the Property as shown on the
Final Development Plan Documents. This obligation may be assigned to a metro district
or homeowners association duly constituted pursuant to Colorado state law, however,
should such homeowners association be dissolved, the obligation shall become that of
the Developer or its successor(s) in interest.
J. Ground Water, Subdrains and Water Rights
1. The Developer, for itself and its successor(s) in interest, hereby
agrees to indemnify and hold harmless the City against any damages or injuries sustained
in the Development as a result of ground water seepage or flooding, structural damage,
or other damage unless such damages or injuries are proximately caused by the City's
negligent operation or maintenance of the City's storm drainage facilities in the
Development. No language in this Paragraph shall be construed or interpreted as
establishing in any way the City's liability for any act or omission and the terms of this
Paragraph solely relate to the Developer's obligation to indemnify and hold harmless the
City.
2. If the Development includes a subdrain system, any such subdrain
system, whether located within private property or within public property such as street
rights-of-way or utility or other easements, shall not be owned, operated, maintained,
repaired, or reconstructed by the City, and it is agreed that all ownership, operation,
maintenance, repair, and reconstruction obligations shall be those of the Developer or the
Developer's successor(s) in interest. Such subdrain system is likely to be located both
upon private and public property and, to the extent that it is located on public property, all
maintenance, operation, repair, or reconstruction shall be conducted in such a manner
that such public property shall not be damaged, or if damaged, shall, upon completion of
any such project, be repaired in accordance with then existing City standards. The City
shall not be responsible for, and the Developer, for itself and its successor(s) in interest,
hereby agrees to indemnify and hold harmless the City against, any damages or injuries
sustained in the Development as the result of groundwater seepage or flooding, structural
damage, or other damage resulting from failure of any such subdrain system.
3. Without admitting or denying any duty to protect water rights, the
Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold
harmless the City against any damages or injuries to water rights caused, directly or
indirectly by the construction, establishment, maintenance or operation of the
Development.
4. The City agrees to give notice to the Developer of any claim made
against it to which the foregoing indemnities and hold harmless agreements by the
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Developer contained in Paragraph II.J could apply, and the Developer shall have the right
to defend any lawsuit based on such claim and to settle any such claim provided the
Developer must obtain a complete discharge of all City liability through such settlement.
Failure of the City to give notice of any such claim to the Developer within 90 days after
the City first receives notice of such claim under the Colorado Governmental Immunity
Act for the same, shall cause the foregoing indemnities and hold harmless agreements
by the Developer to not apply to such claim and such failure shall constitute a release of
the foregoing indemnities and hold harmless agreements as to such claim.
K. Hazards and Emergency Access
1. No stockpiled combustible material will be allowed on the Property
until a permanent water system is installed by the Developer and approved by the City.
2. Before beginning any building construction, and throughout the build-
out of this Development, the Developer shall provide and maintain at all times a
reasonable accessway to each building. Such accessway shall be adequate to handle
any emergency vehicles or equipment, and the accessway shall be kept open during all
phases of construction. Such accessway shall be constructed to an unobstructed width
of at least twenty-feet with four inches of aggregate base course material compacted
according to City standards and with a 100-foot diameter turnaround at the building end
of said accessway. The turnaround is not required if an exit point is provided at the end
of the accessway. Before the construction of said accessway, a plan for the accessway
shall be submitted to and approved by the Poudre Fire Authority and City Engineer. Digital
plan sets shall be submitted to the Poudre Fire Authority at 102 Remington Street for
review and processing. If such accessway is at any time deemed inadequate by the
Poudre Fire Authority or City Engineer, the accessway shall be promptly brought into
compliance and until such time that the accessway is brought into compliance, the City
and/or the Poudre Fire Authority may issue a stop work order for all or part of the
Development.
L. Footing and Foundation Permits
Notwithstanding any provision in this Agreement to the contrary, the
Developer shall be eligible to apply for Footing and Foundation permits under either of
the following circumstances:
1. Upon the installation of all underground water, sanitary sewer, and
storm sewer facilities, and an emergency accessway for the Development in which the
permit is being requested (the "Required Improvements"). The Required Improvements
shall include but not be limited to all mains, lines, services, fire hydrants and
appurtenances for the site as shown on the Final Development Plan Documents; or
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2. Upon the installation of only those Required Improvements deemed
necessary or desirable in order to issue the Footing and Foundation permit as determined
in the sole discretion of the City after discussion with the Developer before issuance of
the Development Construction Permit. Should the City allow the Developer to install
certain Required Improvements after issuance of the Footing and Foundation permit, the
remaining Required Improvements that must be installed by the Developer and the timing
for such installation shall be memorialized in the Development Construction Permit. The
Developer agrees to comply with the Development Construction Permit with regards to
the installation and timing of the remaining Required Improvements.
M. Development Construction Permit
1. The Developer shall apply for and obtain a Development
Construction Permit for this Development, in accordance with Division 2.6 of the Land
Use Code, before the Developer commences construction. The Developer shall pay the
required fees for said Permit and construction inspection, and post security to guarantee
completion of the public improvements required for this Development, before issuance of
the Development Construction Permit.
2. Before the issuance of a Development Construction Permit the
Developer shall obtain the approval of a Construction Management Plan from the City.
The Construction Management Plan shall define the management of the construction of
the Development, establishing the timing, duration, location, delivery and storage of
materials and idle equipment; the timing, duration, and location of parking; and the timing,
duration and location for the operation of equipment. The Construction Management Plan
shall define the impacts (if any) to public rights-of-way, which would then be subject to
the Encroachment Regulations as indicated in Paragraph II.E.4. of this Agreement.
N. Maintenance and Repair Guarantees
The Developer agrees to provide a two-year maintenance guarantee and a
five-year repair guarantee covering all errors or omissions in the design and/or
construction of the public improvements required for this Development, which guarantees
shall run concurrently and shall commence upon the date of completion of the public
improvements and acceptance thereof by the City. More specific elements of these
guarantees are noted in Exhibit B, attached hereto and incorporated herein by reference.
Security for the maintenance guarantee and the repair guarantee shall be as provided in
Section 3.3.2(C) of the Land Use Code. Notwithstanding the provisions of Paragraphs III
(H) and (1) of this Agreement to the contrary, the obligations of the Developer pursuant to
this Paragraph and Exhibit B may not be assigned or transferred to any other person or
entity unless the warranted improvements are completed by, and a letter of acceptance
of the warranted improvements is received from the City by, such other person or entity.
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III. Miscellaneous
A. The Developer agrees to provide and install, at its expense, adequate
barricades, warning signs and similar safety devices at all construction sites within the
public right-of-way and/or other areas as deemed necessary by the City Engineer and
Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook" and
shall not remove said safety devices until the construction has been completed.
B. As required pursuant to Chapter 20, Article IV of City Code, the Developer
shall, at all times, keep the public right-of-way free from accumulation of waste material,
rubbish, or building materials caused by the Developer's operation, or the activities of
individual builders and/or subcontractors; shall remove such rubbish as often as
necessary, but no less than daily and; at the completion of the work, shall remove all such
waste materials, rubbish, tools, construction equipment, machinery, and surplus materials
from the public right-of-way. The Developer further agrees to maintain the finished street
surfaces so that they are free from dirt caused by the Developer's operation or as a result
of building activity. Any excessive accumulation of dirt and/or construction materials shall
be considered sufficient cause for the City to withhold building permits and/or certificates
of occupancy until the problem is corrected to the satisfaction of the City Engineer. If the
Developer fails to adequately clean such streets within two days after receipt of written
notice, the City may have the streets cleaned at the Developer's expense and the
Developer shall be responsible for prompt payment of all such costs. The Developer also
agrees to require all contractors within the Development to keep the public right-of-way
clean and free from accumulation of dirt, rubbish, and building materials.
C. The Developer hereby agrees that it will require its contractors and
subcontractors to cooperate with the City's construction inspectors by ceasing operations
when winds are of sufficient velocity to create blowing dust that, in the inspector's opinion,
is hazardous to the public health and welfare.
D. The Developer shall, pursuant to the terms of this Agreement, complete all
improvements and perform all other obligations required herein, as such improvements
or obligations may be shown on the Final Development Plan Documents, or any
documents executed in the future that are required by the City for the approval of an
amendment to a development plan, and the City may withhold (or to the extent permitted
by law, revoke) such building permits and certificates of occupancy as it deems necessary
to ensure performance in accordance with the terms of this Agreement. The processing
and "routing for approval" of the various development plan documents may result in
certain of said documents carrying dates of approval and/or execution that are later than
the date of execution of this Agreement. The Developer hereby waives any right to object
to any such discrepancy in dates.
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E. Nothing herein contained shall be construed as a waiver of any
requirements of City Code or the Land Use Code and the Developer agrees to comply
with all requirements of the same.
F. If the City waives any breach of this Agreement, no such waiver shall be
held or construed to be a waiver of any subsequent breach hereof.
G. All financial obligations of the City arising under this Agreement that are
payable after the current fiscal year are contingent upon funds for that purpose being
annually appropriated, budgeted and otherwise made available by the Fort Collins City
Council, in its discretion.
H. This Agreement shall run with the Property, including any subsequent
replatting of all, or a portion of the Property. This Agreement shall also be binding upon
and inure to the benefit of the parties hereto, their respective personal representatives,
heirs, successors, grantees, and assigns. It is agreed that all improvements required
pursuant to this Agreement touch and concern the Property regardless of whether such
improvements are located on the Property. Assignment of interest within the meaning of
this paragraph shall specifically include, but not be limited to, a conveyance or assignment
of any portion of the Developer's legal or equitable interest in the Property, as well as any
assignment of the Developer's rights to develop the Property under the terms and
conditions of this Agreement.
I. If the Developer transfers title to the Property and is thereby divested of all
equitable and legal interest in the Property, the Developer shall be released from liability
under this Agreement with respect to any breach of the terms and conditions of this
Agreement occurring after the date of any such transfer of interest. In such event, the
succeeding property owner shall be bound by the terms of this Agreement.
J. Each and every term of this Agreement shall be deemed to be a material
element hereof. If either party fails to perform according to the terms of this Agreement,
such party may be declared in default. If a party has been declared in default hereof, the
defaulting party shall be given written notice specifying such default and shall be allowed
a period of ten days within which to cure said default. If the default remains uncorrected,
the party declaring default may elect to: (a) terminate the Agreement and seek damages;
(b) treat the Agreement as continuing and require specific performance; or (c) avail itself
of any other remedy at law or equity.
K. In the event of the default of any of the provisions hereof by the Developer
which require the City to commence legal or equitable action against the Developer, the
Developer shall be liable to the City for its reasonable attorney's fees and costs incurred
by reason of the default. Nothing herein shall be construed to prevent or interfere with
the City's rights and remedies specified in Paragraph III.D of this Agreement.
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L. Except as may be otherwise expressly provided herein including for the
fulfillment of certain of the Master Developer's obligations under the Public Benefits
Agreement, this Agreement shall not be construed as or deemed to be an agreement for
the benefit of any third party or parties, and no third party or parties shall have any right
of action hereunder for any cause whatsoever.
M. It is expressly understood and agreed by and between the parties hereto
that this Agreement shall be governed by and its terms construed under the laws of the
State of Colorado and the City of Fort Collins, Colorado.
N. Any notice or other communication given by any party hereto to any other
party relating to this Agreement shall be hand-delivered or sent by certified mail, return
receipt requested, addressed to such other party at their respective addresses as set forth
below; and such notice or other communication shall be deemed given when so hand-
delivered or three days after so mailed:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
If to the Developer: Pedcor Investments — 2023 — CLXXXVI, L.P.
770 31d Ave, S.W.
Carmel, Indiana 46032
Attention: Jared Houser
With a copy to: Pedcor Investments, A Limited Liability Company
770 31d Ave, S.W.
Carmel, Indiana 46032
Attention: Development Legal
If to the Lender: Merchants Bank of Indiana
410 Monon Boulevard, 2nd Floor
Carmel, Indiana 46032
Attention: MBI Asset Management
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If to the Owner: Pedcor Investments, A Limited Liability Company
c/o Jared Houser
One Pedcor Square
770 31d Ave, S.W.
Carmel, IN 46032
With a copy to: Pedcor Investments, A Limited Liability Company
770 31d Ave, S.W.
Carmel, Indiana 46032
Attention: Development Legal
Notwithstanding the foregoing, if any party to this Agreement, or its successors, grantees
or assigns, wishes to change the person, entity or address to which notices under this
Agreement are to be sent as provided above, such party shall do so by giving the other
parties to this Agreement written notice of such change.
O. When used in this Agreement, words in the singular shall include the plural
and vice versa. This Agreement shall be construed according to its fair meaning, and as
if prepared by all parties hereto, and shall be deemed to be and contain the entire
understanding and agreement between the parties hereto pertaining to the matters
addressed in this Agreement. There shall be deemed to be no other terms, conditions,
promises, understandings, statements, representations, expressed or implied,
concerning this Agreement, unless set forth in writing and signed by all parties hereto.
P. Paragraph or Section headings used herein are for convenience of
reference and shall in no way define, limit, or prescribe the scope or intent of any provision
under this Agreement.
Q. The Owner is made a party to this Agreement solely for the purpose of
subjecting the Property to the covenants contained in this Agreement. The City and the
Developer expressly acknowledge and agree that the Owner shall not be liable for any
obligations of the Developer under this Agreement, unless the Owner exercises the rights
of the Developer to develop the Property, in which event the obligations of the Developer
shall become those of the Owner.
R. Lender Acknowledgment
1. The City acknowledges that it has been informed by Merchants Bank
of Indiana (the "Lender"), that the Lender intends to extend a loan or loans to the
Developer to finance the costs of constructing and equipping the Development.
2. The City acknowledges that, pursuant to Paragraph III.N of this
Agreement, the Developer has requested that copies of all notices given by the City to
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the Developer shall also be given to the Lender at the address set forth therein. The City
further acknowledges that the Lender has, or will have, a right (but not the obligation) to
remedy or cure any default by the Developer under this Agreement on behalf of the
Developer and that the City will accept such remedy or cure if properly carried out by the
Lender on behalf of the Developer.
3. Nothing contained herein shall be construed to impose any liability
or obligation of the City to the Lender, except as expressly provided in this Paragraph
III.R.
S. No term or condition of this Agreement shall be construed or interpreted as
a waiver, express or implied, of any of the immunities, rights, benefits, protections, or
other provisions, of the Colorado Governmental Immunity Act, CRS §24-10-101 et seq.,
or under any other law.
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Tina Harris,Clerk&Recorder,Larimer County,CO
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
DocuSigned by:
BY: �J� vihayfi"
OB86D5871 D89400...
City Manager
Name: Kelly DiMartino
Title: City Manager
Date: August 28, 2025
ATTEST:
DocuSigned by:
934E243B639B429...
City Clerk or Designee Signed by:
Name: D Coldiron o4FORT�ol
Title: Deputy City Clerk
SEAL
COLORA�O
APPROVED AS TO CONTENT:
_DDocuSigned by:
OF6AA27D6B864EA...
City Engineer's Office
Name: Tim Dinger
Title: Civil Engineer III
APPROVED AS TO FORM:
ESigned by:
6LAit, bbSfw
BD612480E7EB4DF...
City Attorney's Office
Name: Stefanie Boster
Title: Senior Assistant City Attorney
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RECEPTION#20250039823, 8/28/2025 1:39:45 PM,29 of 43,S43.00 Electronically Recorded
Tina Harris,Clerk&Recorder,Larimer County,CO
DEVELOPER:
Pedcor Investments —2023 — CLXXXVI, L.P.
an Indiana limited partnership
By: Mulberry Housing Company, LLC,
an Indiana limited liability company,
its General Partner
By: Pedcor Investments, A Limited Liability
Company,
a Wyoming limite liability company,
its Manager
A
By
a d Houser\, E utive Vice President
Date:
ATTEST:
By;
STATE OF INDIANA )
) ss.
COUNTY OFHAMILTON )
The foregoing instrument was acknowledged before me this "Ot day of
2025, by Jared Houser as Executive Vice President of Pedcor
Investments, A Limited Liability Company, a Wyoming limited liability company, the
Manager of Mulberry Housing Company, LLC, an Indiana limited liability company, the
General Partner of Pedcor Investments — 2023 — CLXXXVI, L.P., an Indiana limited
partnership.
A .+ury rs Notary Public
CAITLIN BURGESS
My Commission Expires: 12 oPaY.P�e(�J Notary Public. State of Indiana
g;SEAL'n= Boone County
.z t•, ,r;Commission Number NP0719531i'..
My Commission Expires
April 02,2027
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Tina Harris,Clerk&Recorder,Larimer County,CO
OWNER:
Pedcor Investments, A Limited Liability
Company
a Wyoming limiteliliability company
By:
a d Ho e i Executive Vice President
Date: A -Ls
ATTEST:
By:
STATE OF INDIANA )
) ss.
COUNTY OF HAMILTON )
The foregoing instrument was acknowledged before me this day of
1 , 2025, by Jared Houser as Executive Vice President of Pedcor Investments,
A Limited Liability Company, a Wyoming limited liability company.
Iv, f Notary Public
\\\\Il llllr�.:
My Commission Expires: IL I-, pro,, CAITLIN BURGESS
o; NotaLA
ic, State of Indiana'
ne County
ComNumorNP0719538
HprIANP Mmission Expires
I 02,b2 027
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Tina Harris,Clerk&Recorder,Larimer County,CO
EXHIBIT A
1. Schedule of electrical service installation.
Electrical lines need to be installed before the installation of the sidewalk,
curb returns, handicap ramps, paving and landscaping. If the Developer installs
any curb return, sidewalk or handicap ramp before the installation of electrical lines
in an area that interferes with the installation of the electrical line, the Developer
shall be responsible for the cost of removal and replacement of those items and
any associated street repairs.
2. Schedule of water lines to be installed out of sequence.
Not Applicable
3. Schedule of sanitary sewer lines to be installed out of sequence.
Not Applicable
4. Schedule of street improvements to be installed out of sequence.
Not Applicable
5. Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable
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EXHIBIT B
MAINTENANCE GUARANTEE:
The Developer hereby warrants and guarantees to the City, for a period of two years from
the date of completion and first acceptance by the City of the public improvements
warranted hereunder, the full and complete maintenance and repair of the public
improvements constructed for this Development. This warranty and guarantee is made in
accordance with the City Land Use Code. This guarantee applies to the streets and all
other appurtenant structures and amenities lying within the rights-of-way, easements and
other public properties, including, without limitation, all curbing, sidewalks, bike paths,
drainage pipes, culverts, catch basins, drainage ditches and landscaping. Any
maintenance and/or repair required on utilities shall be coordinated with the owning utility
company or city department.
The Developer shall maintain said public improvements in a manner that will assure
compliance on a consistent basis with all construction standards, safety requirements and
environmental protection requirements of the City. The Developer shall also correct and
repair, or cause to be corrected and repaired, all damages to said public improvements
resulting from development-related or building-related activities. If the Developer fails to
correct any damages within thirty days after written notice thereof, then said damages
may be corrected by the City and all costs and charges billed to and paid by the
Developer. The City shall also have any other remedies available to it to the fullest extent
of the law or as authorized by this Agreement. Any damages which occurred before the
end of said two year period and which are unrepaired at the termination of said period
shall remain the responsibility of the Developer.
REPAIR GUARANTEE:
The Developer agrees to hold the City harmless for a five year period, commencing upon
the date of completion and acceptance by the City of the public improvements constructed
for this Development, from any and all claims, damages, or demands arising on account
of the design and construction of public improvements of the Property shown on the
approved plans and documents for this Development; and the Developer furthermore
commits to make necessary repairs to said public improvements, to include, without
limitation, the roads, streets, fills, embankments, ditches, cross pans, sub-drains, culverts,
walls and bridges within the right-of-way easements and other public properties, resulting
from failures caused by design and/or construction defects. This agreement to hold the
City harmless includes defects in materials and workmanship, as well as defects caused
by or consisting of settling trenches, fills, or excavations.
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Further, the Developer agrees that the City shall not be liable to the Developer during the
warranty period, for any claim of damages resulting from negligence in exercising
engineering techniques and due caution in the construction of cross drains, drives,
structures or buildings, the changing of courses of streams and rivers, flooding from
natural creeks and rivers, and any other matter whatsoever on private property. Any and
all monetary liability occurring under this paragraph shall be the liability of the Developer.
The obligations of the Developer pursuant to the "maintenance guarantee" and "repair
guarantee" provisions set forth above may not be assigned or transferred to any other
person or entity unless the warranted improvements are completed by, and a letter of
acceptance of the warranted improvements is received from the City by, such other
person or entity.
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Tina Harris,Clerk&Recorder,Larimer County,CO
EXHIBIT C
STANDARD TI C (SOPs)FOR STORMWATER
Purpose
In order for physical stormwater Best Management Practices (BMPs) to be
effective, proper maintenance is essential. Maintenance includes both routinely
scheduled activities, as well as non-routine repairs that may be required after
large storms, or as a result of other unforeseen problems. Standard Operating
Procedures (SOPS) clearly identify BMP maintenance responsibility. BMP
maintenance is the responsibility of the entity owning the BMP.
Identifying who is responsible for maintenance of BMPs and ensuring that an
adequate budget is allocated for maintenance is critical to the long-term success
of BMPs. For this project, the privately owned BMPs shown in Section B below are
to be maintained by the Developer (or successor in interest which may be a
property owner, or Homeowners Association (HOA), or property manager). It is
incumbent upon the Developer to keep maintenance records and provide these
records to the City upon request.
Site-Specific SOPs
The following stormwater facilities contained within this development are subject
to SOP requirements:
- Directly Connected Downspouts
- Perforated Subdrain
- Storm Drain Lines
- Sedimentation Sump
- Pre-Sedimentation Forebay
- Bioretention
- Vegetated and/or Cobble Swale
The location of said facilities can be found on the Bloom Filing Three Utility Plans
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and Landscape Plans. Required inspection and specific maintenance procedures
and frequencies are outlined in the following pages. General maintenance
requirements and activities, as well as BMP-specific constraints and
considerations shall follow the guidelines outlined in Volume 3 of the Mile High
Flood District (MHFD) Urban Storm Drainage Criteria Manual.
SOP Maintenance Summary Table
Stormwater Facility
Ownership/
/ Responsibility MHFD Maintenance Reference
BMP
Directly Connected
Private N/.4
Downspouts
Perforated Subdrain Private N/A
Follow guidelines for Storm Sewer System
Storm Drain Lines Private Cleaning (Chapter51 Source Control BMP Fact
Sheet 5-12)
Sedimentation Sump Private N/A
Pre-Sedimentation Private Follow guidelines for Pre-Sedimentation
Forebay Forebay(Chapter 61 Section 9.0)
Bioretention/Bioswale Private Follow guidelines for Bioretention (Chapter6,
Section 5.0)
Follow guidelines for Grass Buffers and
Vegetated and/or Swales(Chapter 61 Section 4.0). Take note of
Cobble Swale Private native vegetation. Also follow
recommendations on Landscape Plans and
Specifications.
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Tina Harris,Clerk&Recorder,Larimer County,CO
Directly Connected Downspouts
Many of the downspouts connect directly to the storm drain system. The following SOP
generally applies to all direct downspout connections.
This SOP can more specifically apply to those which drain directly to the reservoir areas
beneath the Modular Block Pavers. At each of these connections, the downspout
discharges to a perforated drain basin. The drain basins discharge directly to the MBP
reservoir. The drain basins are designed to prevent debris and sediment from entering
the MBP reservoir area. Debris and sediment compromise the functionality and
effectiveness of the system.
Routine Maintenance Table for Directly Connected Downspouts
Required
Maintenance Objective Frequency of Action
Action
Inspect the downspout and
basin to ensure the system
Inspections functions as it was designed. Routine
Repair or replace damaged
downspouts as needed.
Sediment, Remove debris and litter from Routine —just before annual storm
Debris and the basin. Remove sediment seasons (i.e., April/May); at the end of
Litter removal from the sump. storm season after leaves have fallen; and
following significant rainfall events.
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Perforated Subdrain
The perforated subdrain system storm drain outfall at the bottom of the Low Impact
Development (LID) system is critical to the overall function of the system subbase. As
such, special maintenance has been identified to ensure these perforated drain systems
perform as they were designed.
Perforated subdrains leading away from the LID system is designed to provide faster
release of water when accumulation occurs under the LID system. Outflow should be
seen into downstream storm boxes. If not seen it is recommended that the system is
inspected using a video camera to verify no clogging has occurred.
Perforated subdrains leading toward the LID system are designed to provide an
opportunity for infiltration. These subdrains may lead to a drywell where additional
infiltration capacity is available to reduce runoff per the stated LID goals adopted by the
City.
Routine Maintenance Table
Required
Maintenance Objective Frequency of Action
Action
Use a video camera to inspect
the condition of the perforated
drain pipes. Cleanout pipes as
Inspection Every two to five years.
needed. If the integrity of the
pipe is compromised, then repair
the damaged section(s).
Where accessible, expose inlet
and/or outlet of perforated pipe
Inspection Minimum Annually
and watch for water inflow
and/or outflow.
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Storm Drain Lines Maintenance Plan
Storm drain lines are subject to sedimentation as well as tree roots clogging the flow
path or altering the pipe slope. Maintenance is important to ensure these storm drain
systems perform as they were designed.
Routine Maintenance Table
Required
Maintenance Objective Frequency of Action
Action
Use a video camera to inspect
the condition of the storm drain
pipes. Cleanout pipes as needed.
Inspection Every two to five years.
If the integrity of the pipe is
compromised, then repair the
damaged section(s).
Sedimentation Sump Maintenance Plan
The sedimentation sumps located upstream of drywells or infiltration galleries are
intended to reduce the accumulation of sediment and debris in underground systems.
These sumps have a capacity provided for accumulated sediment that must be
maintained. These sumps are located within manholes or inlets as shown on the utility
plans and provided with snouts to reduce the hydrocarbon load dispersed into the
undergrounds system that could compromise the functionality.
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Routine Maintenance Table
Required
Maintenance Objective Frequency of Action
Action
Hydrocarbons and sediment will need to be
removed regularly from the inlet. Sediment
should be removed prior to the depth of the
water reducing below 2' from the top of the
sediment buildup to the snout bottom. The layer
of hydrocarbons should be removed from the
inlet prior to accumulation beyond half of the
height of the snout. A vacuum truck should be
Inspections used to remove all sediment, hydrocarbons and Routine — Inspect at least
and Debris residual water from the inlet. Remaining every other year or as
Removal sediment may be removed manually and conditions apply.
disposed of in a legal manner. The sump should
then be filled with clean water.
The Snout apparatus should be replaced as age
deterioration occurs and prior to failure. The seal
should be checked regularly to ensure
hydrocarbons are not bypassing the device.
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Pre-Sedimentation Forebay
Routine Maintenance Table (Summary from Chapter 6 of MHFD)
Required
Maintenance Objective Frequency of Action
Action
Routine — Including just before annual
Debris and Remove debris and litter as storm seasons (that is, April and May),
Litter removal needed. Floating debris can clog end of storm season after leaves have
the overflow structure fallen, and following significant rainfall
events.
Non-routine — Performed when sediment
Remove accumulated sediment
from the bottom of the basin accumulation appears to result in
before it becomes a significant excessive algae growth or mosquito
Forebay source of pollutants for the production. This may vary considerably,
Sediment remainder of the pond. Inspect but expect to do this every approximately
removal to ensure that sediment does every 4 years, as necessary per inspection
not result in excessive algae if no construction activities take place in
growth or mosquito production. the tributary watershed. More often if
they do.
Inspect to ensure that the facility
Routine — Annual inspection of hydraulic
continues to function as initially
and structural facilities. Also check for
intended. Examine the outlet for
obvious problems during routine
clogging, erosion, slumping,
Inspections excessive sedimentation levels, maintenance visits, especially for plugging
of outlets. Note the amount of sediment
overgrowth, embankment
in the forebay and look for debris at the
integrity and damage to any
outlet structure.
structural element.
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Bioretention
Routine Maintenance Table (Summary from Chapter 6 of MHFD)
Required
Maintenance Objective Frequency of Action
Action
Occasional mowing of grasses
and weed removal to limit
Lawn mowing unwanted vegetation. Maintain Routine — Depending on aesthetic
and vegetative irrigated turf grass as 2 to 4 requirements, planting scheme and
cover. Weeds should be removed
care inches tall and non-irrigated
before they flower.
native turf grasses at 4 to 6
inches.
Remove debris and litter from
bioretention area and upstream
concrete forebay to minimize
clogging of the sand media.
Remove debris and litter from the
Debris and pond area and outlet orifice plate Routine — Including just before annual
litter removal to minimize clogging. Remove storm seasons and after snow season
debris and litter from curb (April or May), end of storm season after
and snow
stockpiling channel and sidewalk chase leaves have fallen, and following
outlets adjacent to pond if significant rainfall events.
applicable to minimize clogging.
Avoid stockpiling snow in the
bioretention area to minimize
clogging from sediment
accumulation.
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Inspect detention area to
determine if the sand media is
allowing acceptable infiltration. If
standing water persists for more Routine — Biannual inspection of the
Inspections
than 24 hours after storm runoff hydraulic performance.
has ceased, clogging should be
further investigated and
remedied.
Non-routine — Performed when clogging
is due to the migration of sediments
Growing
media Restore infiltration capacity of deep into the pore spaces of the media.
bioretention facilities. The frequency of replacement will
replacement
depend on site-specific pollutant
loading characteristics.
Grass Buffers and Swales
Routine Maintenance Table (Summary from Section 4.0, Chapter 6 of MHFD)
Required
Maintenance Objective Frequency of Action
Action
Maintain irrigated grass at 2 to 4
inches tall and non-irrigated
Lawn mowing native grass at 6 to 8 inches tall.
Routine —As needed.
and Lawn care Collect cuttings and dispose of
them offsite or use a mulching
mower.
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Reduces soil compaction and Routine — at least once per year when
Aeration helps water move into the root ground is not frozen. Heavy traffic areas
zone. may require more frequent aeration.
Use minimum amount of
Fertilizer, biodegradable nontoxic fertilizers Frequency of application should be on
Herbicide and and herbicides needed to an as-needed basis only and should
Pesticide establish and maintain dense reduce following the establishment of
Application vegetation cover that is vegetation.
reasonably free of weeds.
Remove litter and debris to
prevent rill and gully
development. Keep the Swale area
Debris and Routine —As needed by inspection, but
clean for aesthetic reasons, which
Litter removal no less than two times per year.
also reduces the potential for
floatables being flushed
downstream.
Routine —As needed by inspection.
Remove accumulated sediment Estimate the need to remove sediment
Sediment near the buffer interface with from 3 to 10 percent of total length of
impervious area. Replace the interface per year, as determined by
removal
grass areas damaged in the annual inspection. Expect turf
process. replacement for the interface ever 10-20
yea rs.
Check the grass for uniformity of
Routine — Inspect vegetation at least
Inspections cover, sediment accumulation in
twice annually.
the swale, and near culverts.
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