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Page 1 of 7 AMENDMENT TO FEBRUARY 1, 2008 AGREEMENT FOR MILLER CREEK ROAD IMPROVEMENTS FROM BRIGGS STREET TO MOCKINGBIRD WAY AND APPROXIMATELY 500 FEET WEST OF THE WYE ON LOWER MILLER CREEK ROAD This Amended Agreement made this day of 200__, by and between Maloney Properties, LLC (Maloney), the Lloyd A. Twite Family Partnership (Twite), and the City of Missoula (City), for the purpose of making improvements to Miller Creek Road from Briggs Street to Mockingbird Way, and approximately 500 feet west of the Wye Intersection on Lower Miller Creek Road, as defined on Exhibit A, incorporated into this Agreement. The improvements (Project) are to be funded by subdivision transportation mitigation contributions to the Miller Creek Transportation Mitigation Fund. RECITALS 1. WHEREAS, prior to 1996 Missoula County had determined that Miller Creek Road between Briggs and the Wye Intersection of Upper and Lower Miller Creek Roads were approaching their anticipated traffic capacity, were in a state of disrepair, and needed to be rebuilt upon completion of land/right-of-way acquisition, surveying, and engineering design; and 2. WHEREAS, in 1997 Missoula County established the Miller Creek Transportation Mitigation Fund as mitigation of the impacts of new subdivisions on existing roads within the Miller Creek Traffic Basin. 3. Upon approval of subdivision of lots in the Miller Creek Traffic Basin, developers of residential subdivision lots are required to contribute $1,800 per single-family residential lot. Multi-family dwelling units are required to contribute 80% of $1,800 ($1,440) per unit. Alternative improvements to roadways within the Miller Creek Traffic Basin may be required in lieu of contributions to the Miller Creek Transportation Mitigation Fund, based upon a finding that the alternate improvements adequately mitigate the impact of the subdivision’s traffic on the transportation system; and 4. WHEREAS, Missoula County rated the Miller Creek Road and Wye Intersection improvements as a high priority on County’s capital improvement projects list; and 5. WHEREAS, in 1997 Missoula County and Twite conducted a public process resulting in a final design concept that included a third traffic lane, traffic channelization at the Wye Intersection and infrastructure for the future signalization of the Wye Intersection of Lower and Upper Miller Creek Roads. The designs were completed and the Project was prepared for bidding and construction with funding from the Miller Creek Transportation Mitigation Fund. The Project was not constructed due to an inability to negotiate the purchase of needed additional road right-of-way; and ---PAGE BREAK--- Page 2 of 7 6. WHEREAS, City has annexed portions of the Miller Creek Traffic Basin, the existing transportation system, and portions of the Project; and 7. WHEREAS, after annexing the Project area in 1999, City reconstructed roadway within the Project area with a new asphalt paved surface, but did not include the full scope of improvements contained in the 1997 design; and 8. WHEREAS, the existing transportation system in the Project area is causing undesirable traffic delays to the residents in the Miller Creek Traffic Basin; and 9. WHEREAS, Dr. C. G. McCarthy, the predecessor in interest to Maloney, contributed $250,000.00 to the Miller Creek Transportation Mitigation Fund, subject to specific restrictions contained in the June 23, 1999 letter agreement (Exhibit The present value of that contribution is $341,332.66 as of November 10, 2009. Dr. McCarthy’s sole surviving heir, Shauna Ginter, indicated in her letter of April 20, 2007 that it is her wish that this contribution be used to fund the Project, subject to the original restrictions (Exhibit and 10. WHEREAS, Missoula County has collected $1,800 per lot or dwelling unit into the Miller Creek Transportation Mitigation Fund for approximately 64 lots platted within the Miller Creek Traffic Basin, and totaling $146,387.27 as of November 10, 2009; and 11. WHEREAS, Maloney has platted 327 lots subject to the $1,800 per lot contribution to the Miller Creek Transportation Mitigation Fund for a total of $588,600. As of November 10, 2009, Maloney has funded $11,900 of the initial 1994 Traffic Study of the Miller Creek Transportation Basin; and, $69,000 of the efforts to secure federal funding; and, $25,342 for the 2007 Traffic Study and a portion of the preliminary design. These expenses are credited against the $588,600 leaving a balance of $482,358. In October 2008, Maloney made a payment to the Miller Creek Transportation Mitigation Fund of $551,358 leaving a credit to Maloney of $69,000 for 38 future lots. 12. WHEREAS, Twite has platted 173 single-family lots subject to the $1,800 per lot contribution to the Miller Creek Transportation Mitigation Fund, and 28 multi-family units subject to the $1,440 per unit contribution to the Miller Creek Transportation Fund and has guaranteed payment of $351,720 by providing land as collateral securing the guarantee to the County. As of June 30, 2007, Twite has funded $170,179 for two separate road designs and right-of-way negotiations prior to October 2006; and, $73,607 for a portion of the current preliminary design, landowner meetings, and coordination with the City and County. These expenses are credited against the $351,720 in guarantees leaving a balance due from Twite of $107,934. The balance due was paid by Twite to the Miller Creek Transportation Mitigation Fund on March 31, 2008. 13. WHEREAS, City, Maloney, and Twite have agreed that the Project needs to be completed at the earliest possible date; and ---PAGE BREAK--- Page 3 of 7 14. WHEREAS, Maloney and Twite have submitted subdivisions to the City and have been granted preliminary subdivision approval. With the filing of subdivision plats for all phases of these subdivisions and the required contributions to the Miller Creek Transportation Mitigation Fund, funds would be available to complete the Project. Prepayment of the per lot contribution to mitigate traffic impacts could provide adequate funds to construct the Project in advance of significant increases in traffic volumes in the Project area; and 15. WHEREAS, City has adopted Resolution No. 7038, dated March 13, 2006, which supports no more than a three lane improvement in the Project area; and 16. WHEREAS, WGM Group prepared a traffic report for the necessary improvements in the Project area, dated February 6, 2007 (Exhibit and 17. WHEREAS, WGM Group prepared a 95% design for necessary improvements in the Project area, dated September 17, 2009(Exhibit and 18. WHEREAS, the City Public Works Department has reviewed and approved the traffic report and 95% design; and 19. WHEREAS, the total cost of the Project was estimated to be $3,121,000 as of September 17, 2009(Exhibit and ---PAGE BREAK--- Page 4 of 7 AGREEMENT NOW THEREFORE, City, Maloney, and Twite agree as follows: 1. City will utilize its authority for the relocation of utilities and right-of-way acquisition, as required. 2. Maloney and Twite agree to partially fund construction of the Project, up to the $3,121,000 cost estimate, by each equally contributing up to $750,000 beyond what is available in the Miller Creek Transportation Mitigation Fund. These funds will be guaranteed by each developer in a method acceptable to the City with payments made as follows: $275,000 at the time contract award, $275,000 at the mid point of construction, and $200,000 at the time of construction completion. 3. In the event that when Project bids are received, the total costs are anticipated to be greater than the $3,121,000 cost estimate, the City understands and agrees that additional funding will be required from other sources, or construction of the Project will be delayed until there are sufficient funds in the Mitigation Fund. If the Project is awarded and final Project costs are greater than the $3,121,000 cost estimate, the City may provide any additional funding required to complete the Project. If the Project cost is less than the $3,121,000 cost estimate, the remaining funds will be returned to Maloney, Twite, and the City at equal shares upon completion of the Project. 4. The advance funds used for construction of the Project shall satisfy the required contribution to the Miller Creek Transportation Mitigation Fund for future lots approved in Teton Addition and Linda Vista Estates to the extent of $1,800 per single family lot and $1,440 per multi family unit. 5. The Twite lands do not have approvals for enough lots to apply the credits for future contributions for all of the advance funds. Therefore, $200,000 or the actual amount above $550,000, whichever is less, of the advanced funds by Twite shall be rebated to Twite if other developers within the Miller Creek area, other than Maloney (for Teton Addition at Maloney Ranch), contribute to the Miller Creek Transportation Mitigation Fund. This rebate period shall terminate twenty five years after the completion of construction of the Project or when the rebate funds to Twite equal the advanced fund amounts above $550,000, multiplied by a 2.129 factor. This factor approximates an interest rate of 6.5 percent for 12 years. 6. For the Maloney advanced funds of $550,000, Maloney shall receive credit for 306 single family lots. For the Maloney advanced funds of $200,000 or actual amount above $550,000, whichever is less, shall be multiplied by a factor of 2.129. This factor approximates an interest rate of 6.5 percent for 12 years. The total of which shall be divided by $1,800 to determine the actual number of single family lots to receive the credit. Including the previous credit of 38 lots, Maloney’s potential total credits for future lots could be 581. Multi family lots shall be credited at 0.80 of a single family lot. This ---PAGE BREAK--- Page 5 of 7 advanced funding of up to $750,000 is intended to satisfy Maloney’s obligation to contribute to the Miller Creek Transportation Mitigation Fund. 7. Amounts advanced by Maloney and Twite ($1,800 per single family lot or $1,440 per multi-family unit) will be credited towards the amount due under the Impact Fee at the time that a building permit is issued for each unit. In the event that the Impact Fee is less than the amounts contributed per unit by Maloney and Twite ($1,800 per single family lot or $1,440 per multi-family unit), the Impact Fee will be deemed to be paid in full for each unit and the City will not be required to refund the amount paid in excess of the Impact Fee. 8. The City will cause the final design, specifications, and contract documents to be completed and will have the Project bid and constructed. Prior to bidding and construction, the County will review and approve the plans and specifications for the portion of the work not in the City. The City will not charge an administrative fee to this Project. Accurate records shall be kept of all costs associated with the Project formation, design, and construction; and invoices shall be submitted to City for payment from the Miller Creek Transportation Mitigation Fund for ongoing costs after June 30, 2007. Accurate records shall also be kept of all costs paid by Maloney and Twite to cover shortfalls in revenue necessary to complete the Project, to be applied against any payments required as contributions to the Miller Creek Transportation Fund or through payment of City Transportation Impact Fees by Maloney and Twite. 9. Upon completion of the Project and its acceptance by City and County, an accounting report shall be submitted for the total Project costs and revenue sources. City and County will review the accounting report and issue to Maloney and Twite the following: An accounting of the number of lots that Maloney and Twite will be credited, at $1,800 per single-family lot and $1,440 per multi-family unit for prepayments over and above the money currently on hand, to cover the financial shortfalls necessary to complete this construction Project. 10. This Amended Agreement shall supersede the February 1, 2008 Agreement for Miller Creek Road improvement from Briggs Street to Mockingbird Way and approximately 500 feet west of the Wye on Lower Miller Creek Road. ---PAGE BREAK--- Page 6 of 7 IN WITNESS WHEREOF, City, Maloney, and Twite have set their signatures and seals the day on this instrument first above written. MALONEY: MALONEY PROPERTIES, LLC BY: Title: STATE OF County of This instrument was acknowledged before me on this day of 2009, by , known to me to be the of Maloney Properties, LLC. Notary Public for the State of Residing at: My Commission Expires: Printed Name of Notary Public: TWITE: LLOYD A. TWITE FAMILY PARTNERSHIP BY: Title: STATE OF County of This instrument was acknowledged before me on this day of 2009, by , known to me to be the of Lloyd A. Twite Family Partnership. Notary Public for the State of Residing at: My Commission Expires: Printed Name of Notary Public: ---PAGE BREAK--- Page 7 of 7 CITY: CITY OF MISSOULA BY: Date: Mayor: John Engen ATTEST: BY: Date: City Clerk: Martha L. Rehbein Approved as to Form and Content: BY: Date: City Attorney: Jim Nugent ---PAGE BREAK--- ---PAGE BREAK--- Exhibit B February 6, 2007 Steve King, Public Works Director City of Missoula 435 Ryman St. Missoula, MT 59802 RE: Traffic Analysis of Miller Creek Road Improvements Dear Steve: At our meeting on January 24th you requested that analysis be prepared showing the level-of- service (LOS) for interim buildout and full buildout traffic volumes at the north intersection, under two intersection improvement concepts. The purpose of this letter is to present that analysis for your consideration. Development of Traffic Volumes WGM Group, Inc. (WGM) conducted manual traffic counts to determine the level of existing traffic at the subject intersection in July 2006. The existing peak-hour traffic volumes identified by these counts are illustrated in Figure 1. (All figures are included as enclosures to this letter). WGM then estimated the peak-hour traffic that will be added to the subject intersection by pending development proposals. This process required that the number and type of housing units to be constructed in each development be estimated. Table 1 shows these estimates for each of the remaining undeveloped properties in the Miller Creek traffic drainage. Table 1: Projected Levels of Development Total Units % % Single Family Townhome Maloney 800 60 40 Twitte 660 60 40 Lemm 85 100 0 Hunters Ridge 14 IUU v Boggess & Ginter 320 60 40 Harland & Stanford 290 60 40 ---PAGE BREAK--- King February Page 2 of 4 The Institute of Transportation Engineers (ITE) Trip Generation report (ih Edition) was used to estimate the number of AM and PM peak hour trips that will be generated by each of these ,developments. The results of these calculations are shown in Table 2. Table 2: Development-Generated Trips AM Peak Hour PM Peak Hour Enter Exit Enter Exit Maloney 109 368 382 214 Twitte 91 308 322 181 Lemm 17 52 59 34 Hunters Ridge 5 15 12 7 Subtotal 222 743 775 436 Boggess & Ginter 47 160 171 96 Harland & Stanford 43 147 157 88 Total 312 1,050 1,103 620 WGM then assigned the development-generated peak-hour trips through the north intersection based on the most likely route from each development given the location of the development relative to Upper and Lower Miller Creek Roads. Two assignments were made. The first represents those developments that have reasonable certainty of being approved and constructed in the near term (Maloney, Twitte, Lemm, and Hunters Ridge). These interim buildout development-generated traffic volumes are shown in Figure 2. The second assignment included all of the developments listed in Table 2. This full buildout development-generated traffic volume is shown in Figure 3, which is included as an enclosure with this letter. The interim buildout development-generated traffic was combined with the existing traffic resulting in the interim build traffic volume shown in Figure 4. Similarly, the total buildout development-generated traffic volume was combined with the existing traffic resulting in the total build traffic volume shown in Figure 5. Figure 6 shows a percentage breakout of the traffic volumes projected at the north intersection at full area buildout. Intersection Analysis The interim buildout and full buildout traffic volumes show in Figures 4 and 5 were analyzed to determine the projected delay and LOS at the north intersection. Two intersection configurations were modeled. The first configuration had one left-turn lane eastbound on Lower Miller Creek Road, one through lane northbound on Upper Miller Creek Road, and one through lane southbound on Miller Creek Road, each controlled by a two-phase semi-actuated traffic signal. The southbound right-turn from Miller Creek Road to Lower Miller Creek Road occurs in a separate free-flow lane (approximately 400-feet long) under this configuration. ---PAGE BREAK--- King, February Page 3 of 4 The second configuration differs from the first on the northbound Upper Miller Creek Road approach only. In this configuration the northbound through lane is channelized around the traffic signal and is free flow. The eastbound left and southbound through movements remain under the control of the traffic signal. The capacity analysis results are summarized in Table 3 for intersection configuration 1 and in Table 4 for intersection configuration 2. Table 3: North Intersection Configuration 1 LOS Summary Peak AM Hour Peak PM Hour Interim Build Full Build Interim Build Full Build Traffic Traffic Traffic Traffic Volumes Volumes Volumes Volumes Delay LOS Delay LOS Delay LOS Delay LOS Eastbound Left* 41.8 D 94.3 F 29.8 C 40.3 D Northbound Through 43.6 D 86.7 F 16.3 B 17.7 B Southbound Through 20.3 C 21.0 C 27.3 C 44.6 D Delay is measured in seconds per vehicle. *The existing delay on this intersection movement under today's volumes and stop-sign control is between 34 and 37 seconds during the peak hours. Table 4: North Intersection Configuration 2 LOS Summary Peak AM Hour Peak PM Hour Interim Build Full Build Interim Build Full Build Traffic Traffic Traffic Traffic Volumes Volumes Volumes Volumes Delay LOS Delay LOS Delay LOS Delay LOS Eastbound Left 25.1 C 29.9 C 29.8 C 40.3 0 Southbound Through 24.7 C 30.1 C 27.3 C 44.6 0 Delay is measured in seconds per vehicle. Analysis of the interim build traffic under intersection configuration 1 was previously submitted by WGM to the City of Missoula in relation to this project. That earlier analysis showed iower levels of delay in the AM peak hour due to two primary factors. First, the earlier analysis assumed 12-foot wide lanes, whereas the current analysis reflects the 11-foot lanes currently being designed. This change results in delay increases of 3.5 to 5.5 seconds in the AM interim build configuration 1 analysis. Second, the earlier analysis assumed a maximum of 3% approach grades, whereas the current analysis reflects the five to six percent approach grades ---PAGE BREAK--- that will be included in the final design. This change results in increased delay of 2 seconds on the eastbound approach. We look forward to discussing this traffic analysis with you during our meeting scheduled with the City of Missoula Public Works Department on February 8th . , Sincerely,uZ/ Mark Bancale, P.E. Senior Traffic Engineer Enclosures cc: Kevin Siovarp Greg Robertson Gilbert Larson W:\Projects\070420\Docs\Trans\020607King.doc ---PAGE BREAK--- I 'North Legend AM(PM) Figure 1: 2006 Existing Traffic Volume Miller Creek Road Lower Miller Creek Road Upper Miller Creek Road ---PAGE BREAK--- Miller Greek Road I North Legend AM(PM) Lower MUler Cre'ek Road Upper iMiHer Creek!Road ---PAGE BREAK--- Figure 3: Total Buildout Development-Generated Traffic Volume :M:iller 'Greek Road North Legend AM(PM) Lower Miller :Creek Road Upper iMiller Greek :Road ---PAGE BREAK--- Figure 4: Interim Build Traffic Volume Miller Greek !Road 1 ! North Legend AM(PM) Lower iMi'ller Creek Road Upper :MU1er CreekiRoad "'These 'movements will not be aocommodated underithe improved intersection design. A roundabout ,at Briggs Street Is one possibil:ity for accommodating these ;miinor tr.affic volumes.. ---PAGE BREAK--- Figure 5: Total Build Traffic Volume .MHler Creek Road I North Legend A:M(IPM) Lower MiUer Creek iR:oad Upper·M'iller Greek:Road *ThesemovementswUl not be .accommodated under the i:mproved !r'filtersection design. A roundabout at Briggs Street is one possibility for ,acco:m.modating these minor traffic volumes. ---PAGE BREAK--- Figure 6: Source of Traffic at North nyn at Full Area Buildout .AM Peak EExisting Peak Hour Traffic Gount ·ffiI.Maloney Twitte Lemm Hunters :at ofa bridEe pay be proh:l1':itiv-e. The stud), also potentia! impro~Cli'1'lenl:s1hB1 could hemadeto Miiler Creek Rum! mc1utiing lliejpf)ssibillity m~~s a tmftir.:: iigb:t~ m:dm~~ $~exs! oo~ti,ng bi:c)iCle IDes,end :aid$'1UID3 to the tr4d'fic l.COO:1emm. My falber wam:ted·to help improv:e tihe ~ort£ilioo'to> tht Miller'Greek m:ca. It'was!WI his intent fum tbefunds he(cioomibuteli would 8;U~ S"mee1he srodies thatha.\i"ebeen completedappear tl) be r.eco:mmenm:ng different father ren\'isioned, ~.owd 6k1e kl';see his helpfund ftle pmp1)ieo improvements to MinerCteek'Road ami thepropcrsed stt?ee11i,gb,t '10 bemstaUed ·at :the ifl~tiO.'1l,\1tbLower Miller ~eek R,iood. in!hie·odgmm'tdfertt it is request~d that none·ofthese funds be used for fue acguisilion ofright·ofVYittymid that noneofthe funds be used fur any,~~rt~~ The fun:ds msy ol1l1y be used fur costs·of;mIJ.Itwemenw to 'the str:eels~