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K:\Admin\Public Works Committee\Referrals\2010 August\South Missoula Second Amended Agreement.doc 1 SECOND AMENDMENT TO THE AGREEMENT DATED SEPTEMBER 15, 2008 (FIRST AMENDED MARCH 1, 2010) REGARDING SANITARY SEWER EXTENSION AND UPSIZING FOR THE SOUTH MISSOULA AREA This Second Amendment to the Agreement Regarding Sanitary Sewer Extension and Upsizing for the South Missoula Area (dated September 15, 2008) made this day of 20 by and between the City of Missoula, a municipal corporation and political subdivision organized under the laws of Montana and the City’s home rule charter (City) and Lloyd A. Twite Family Partnership (Twite), the Parties. This document amends the Agreement dated September 15, 2008 between the City and Maloney Properties, LLC (see attached exhibit A) and supplements the First Amendment to the Agreement (dated March 1, 2010). Only those sections of the Agreement that are modified are shown, and the modifications to the Agreement are shown in bold. For good and valuable consideration, the Parties hereby represent, confirm and agree as follows: Section 1. Definitions and Exhibits Section 1.01. Definitions: The following defined words shall have the meanings set forth below, unless the context in which they are used indicates a different meaning. “Project Engineer’ shall mean Gilbert Larson, PE, PLS” Section 1.02. Exhibits. The following described exhibits are attached to this document and by this reference made a part hereof: Exhibit A – Project Components and Zones (revised December 11, 2009) Exhibit B – Sewer Letter of Agreement between Maloney and Lloyd A. Twite family Partnership (unchanged) Exhibit C – Zone A Improvements Opinion of Probable Cost (revised December 31, 2009) Exhibit D – Zone B Improvements Opinion of Probable Cost (unchanged) Exhibit E – City Upsize Improvements Opinion of Probable Cost (unchanged) Exhibit F – City Improvements Opinion of Probable Cost (revised February 4, 2010) Exhibit G – Agreement of Assignment from Maloney to Twite ---PAGE BREAK--- K:\Admin\Public Works Committee\Referrals\2010 August\South Missoula Second Amended Agreement.doc 2 Section 2. Recitals Section 2.09 City has agreed to upsize the Maloney/Twite Improvements from the sizes identified in Section 2.08 of this Agreement to the following main sizes identified by HDR Engineering, Inc. in the South Missoula Sewer Evaluation. Twite Force Main: 8-inch Twite Interceptor: 12-inch Twite/Maloney Interceptor: 12-inch and 15-inch Maloney Ranch interceptor 15-inch Lower Miller Creek Force Main: 8-inch and 12 inch Section 3. The Project. Section 3.01. Project Description. This project consists of the Twite/Maloney Interceptor from Lower Miller Creek Road to the northern boundary of Maloney Ranch, the Maloney Ranch Interceptor, the Miller Creek Pump Station, the Lower Miller Creek Force Main from the Miller Creek Pump Station to Briggs Street, the Lower Miller Creek Interceptor, the Linda Vista Boulevard interceptor, the six-inch force main in Upper Miller Creek Road from the Miller Creek Road Wye to Mockingbird Way, and service connections to select existing properties, all of which will be sized as defined in Section 2.09 of this Agreement. The project is comprised of seven distinct zones, A, B, C, D, E, F and G. All project components and zones are shown or referenced on Exhibit A. Section 3.02. Design of Zone A. Project Engineer shall prepare plans and specifications for Zone A, which shall be defined as a portion of the Twite/Maloney Interceptor from Lower Miller Creek Road to the northern boundary of Maloney Ranch, the Maloney Ranch Interceptor, the Miller Creek Pump Station, and the Lower Miller Creek Force Main from the Miller Creek Pump Station to the approximate break point between Zones A and B, as shown on Exhibit A. Section 3.03. Design of Zone B. City (replaces Project Engineer) shall prepare plans and specifications for Zone B, which shall be defined as the Lower Miller Creek Force Main from the approximate break point between Zones A and B to Briggs Street, as shown on Exhibit A. Section 3.04. Design of Zone C. City (replaces Project Engineer) shall prepare plans and specifications for Zone C, which shall be defined as select service connections to existing properties in Zone B, as shown on Exhibit A. Section 3.06. Design of Zone E. City (replaces Project Engineer) shall prepare plans and specifications for Zone E, which shall be defined as the Upper Miller Creek Force Main, including select service connections to existing properties, as shown on Exhibit A. ---PAGE BREAK--- K:\Admin\Public Works Committee\Referrals\2010 August\South Missoula Second Amended Agreement.doc 3 Section 3.07. Design of Zone F. City (replaces Project Engineer) shall prepare plans and specifications for Zone F, which shall be defined as the Linda Vista Boulevard Interceptor, as shown on Exhibit A. Section 3.08. Design of Zone G. City shall prepare plans and specifications for Zone G and shall construct new facilities from the existing manhole on the north side of Highway #93 (near Applebee’s Neighborhood Bar and Grill) to Reserve Street, at such future time when the capacity of the existing gravity line is approached and additional capacity is needed to serve the Miller Creek Basin. City may choose to increase the capacity with other improvements in this area, as determined by the City. Section 3.09. Construction of Zone A. Twite agrees to construct the Zone A improvements to be completed by December 31, 2010. Section 3.10. Construction of Zone B. A. In order to facilitate coordination of construction efforts, City agrees to construct Zone B improvements simultaneously with the Miller Creek Road Wye Project provided the Zone B improvements are constructed and in service by November 30, 2010. City will determine within one month of the bid opening date for the Miller Creek Road Wye Project or by April 1, 2010, whichever occurs first, if the Zone B improvements will be constructed by City and in service by November 30, 2010. B. If within one month of the bid opening date for the Miller Creek Road Wye Project or by April 1, 2010 City determines the Zone B improvements will not be constructed by City and in service by November 30, 2010, Twite may choose to construct the Zone B improvements in advance of the Miller Creek Road Wye Project. In this case, City will contribute funds to the Project as outlined in Section 4.02.B of this Agreement. C. If within one month of the bid opening date for the Miller Creek Road Wye Project or by April 1, 2010 City determines the Zone B improvements will not be constructed by City and in service by November 30, 2010 and Twite chooses not to construct the Zone B improvements in advance of the Miller Creek Road Wye Project, City and Twite shall revise Section 3.10 of this Agreement to allow for an adjusted timeline for the Project. Said revisions must be agreed upon by mutual written consent of the Parties hereto. Section 3.11. Construction of Zone C. A. If Zone B improvements are constructed by City as outlined in Section 3.09.A of this Agreement, City agrees to construct the Zone C improvements at the same time as the construction of Zone B improvements. B. If Zone B improvements are constructed by Twite as outlined in Section 3.09.B of this Agreement, Zone C improvements will not be constructed as a part of this Project. ---PAGE BREAK--- K:\Admin\Public Works Committee\Referrals\2010 August\South Missoula Second Amended Agreement.doc 4 C. If City and Twite revise Section 3.10 as outlined in Section 3.10.C, City and Twite shall also revise Section 3.11 of this Agreement in conjunction with revisions to Section 3.10. Said revisions must be agreed upon by mutual written consent of the Parties hereto. Section 3.12. Construction of Zone D. By Twite agreeing to relocate the Miller Creek Pump Station to the Linda Vista Executive Golf Course property, the construction of Zone D is no longer necessary. However, the elimination of Zone D improvements will increase the construction cost to Twite for Zone A. City will contribute funds to the Zone A improvements for the increased costs due to the elimination of Zone D as outlined in Section 4.04 of this Agreement. Section 3.13.Construction of Zone E. City agrees to construct the Zone E improvements. Section 3.14.Construction of Zone F. Twite agrees to construct a portion of the Zone F improvements from Lower Miller Creek Road along Linda Vista Boulevard to the south to a point adjacent to the septic tank that serves the Linda Vista 4th Supplement. The length of this portion of the sewer main is approximately 167 feet. The Twite portion of the construction shall include the sewer mains, manhole, connection to the Linda Vista 4th Supplement gravity sewer main, filling of the septic tank with non- compacting material, surface restoration and permits. The Twite portion of the construction shall also include the payment to the Project Engineer (Gilbert Larson) for surveying and construction observation, material testing, and preparation of record drawings. The City agrees to construct the remaining Zone F improvements south of the connection to the Linda Vista 4th Supplement and to pump the septic tank and remove the pumps, controls and other salvage items prior to the abandonment of the septic tanks in the Linda Vista 4th Supplement. The City also agrees to provide any additional easements that may be necessary for the completion of the construction. Section 3.15. Construction of Zone G. City agrees to construct the Zone G improvements. Section 4. Allocation of Project Costs. Section 4.01. Zone A Funding. Twite agrees to provide funding for the design and construction of the Zone A improvements, the total of which is estimated to be $1,908,630, as shown on Exhibit C. Section 4.02. Zone B Funding. A. If the Zone B improvements are constructed by City and in service by November 30, 2010, City agrees to provide funding for the design and construction of Zone B improvements to be built in conjunction with the Miller Creek Road Wye Project, the total of which is estimated to be $353,123, as shown on Exhibit D. B. If within one month of the bid opening date for the Miller Creek Road Wye Project or by April 1, 2010 City determines the Zone B improvements will not be constructed by City and in service by November 30, 2010 and Twite elects to construct the Zone B improvements ---PAGE BREAK--- K:\Admin\Public Works Committee\Referrals\2010 August\South Missoula Second Amended Agreement.doc 5 in advance of the Miller Creek Road Wye Project, Twite agrees to provide funding for the construction of Zone B improvements, the total of which is estimated to be $353,123, as shown on Exhibit D. In this case, upon construction completion and City acceptance of the Project, City agrees to reimburse Twite for the cost of City Upsizing Improvements for the Project, the total of which is estimated to be $351,912, as shown on Exhibit E. C. If within one month of the bid opening date for the Miller Creek Road Wye Project or by April 1, 2010 City determines the Zone B improvements will not be constructed by City and in service by November 30, 2010 and Twite chooses not to construct the Zone B improvements in advance of the Miller Creek Road Wye Project, City and Twite shall revise Section 4.02 of this Agreement to determine appropriate funding based on an adjusted timeline for the Project. Said revisions must be agreed upon by mutual written consent of the Parties hereto. Section 4.03. Zone C Funding. A. If the Zone C improvements are constructed by City and in service by November 30, 2010 as outlined in Section 3.11.A, City agrees to provide funding for the design and construction of improvements in Zone C, the total of which is estimated to be $60,060, as shown on Exhibit F. B. If Zone B improvements are constructed by Twite as outlined in Section 3.11.B of this Agreement, the Zone C improvements will not be constructed as part of this Project, so no funding for Zone C improvements will be required by either Party. C. If City and Twite revise Section 3.11 as outlined in Section 311.C, City and Twite shall revise Section 4.03 of this Agreement in conjunction with revisions to Section 3.11. Said revisions must be agreed upon by mutual written consent of the Parties hereto. Section 4.04. Zone D Funding. In the Agreement dated September 15, 2008, the City agreed to provide funding for the design and construction of improvements in Zone D, the total of which was estimated to be $352,783, as shown on Exhibit F. By relocating the Miller Creek Pump Station to property in the control of Twite, the need for the Zone D improvements has been eliminated. The elimination of Zone D, however, will require force main portions of Zone A to be replaced with more costly gravity sewer main and will eliminate the opportunity to use a shared trench. The elimination of Zone D is estimated to increase the cost for the portion of Zone A that replaces Zone D by $213,792 (see Exhibit F, Opinion of Probable Cost – City Portion). The City will provide $213,792 to Twite upon completion of 50 percent of the construction of the Zone A improvements to compensate for the deletion of Zone D and the resulting cost increase to Twite for Zone A. Section 4.06. Zone F Funding. The City shall provide the amount of $34,178 to Twite for the construction of the portion of Zone F from Lower Miller Creek Road to the connection with the Linda Vista 4th Supplement. Payment shall be made upon completion of the construction of this portion of the Zone F improvements. The City ---PAGE BREAK--- K:\Admin\Public Works Committee\Referrals\2010 August\South Missoula Second Amended Agreement.doc 6 agrees to provide funding for the design and construction of the remaining improvements in Zone F. Section 5. Additional Undertakings of City. Section 5.02. Future Improvements. The existing sewer line (that the proposed improvements connect to) does not have the capacity to serve the full build out for the Miller Creek Basin. The HDR Engineering, Inc. South Missoula Sewer Evaluation for the sewer service to the Basin suggests additional future lines to connect to the sewage interceptor lines in Reserve Street. Once this future connection is in place, larger pumps may be installed in Miller Creek Pump Station to increase the capacity to serve the Basin. The City agrees to construct these future improvements as the demand in the Basin warrants the additional capacity. Section 6. Notice. If notice is required to be given to any party under this Agreement, notice shall be deemed to have been given to such party, if notice is sent by first class mail to the representatives at the party designated below. City: City of Missoula City Engineer City Hall 435 Ryman St. Missoula, MT 59802 Twite: Lloyd A. Twite Family Partnership 3000 Eldora Lane Missoula, MT 59803 A notice sent to the Parties shall also be sent to Project Engineer as follows: Project Engineer: Gilbert Larson c/o P.O. Box 1750 Missoula, MT 59506 Section 8. Termination. Section 8.02. This Amendment to the Agreement shall become effective upon approval by the Council of the City of Missoula and signing by Twite. This Amended Agreement shall remain in full force and effect until the Project has been completed, the improvements have been accepted by City, and if Twite has constructed Zone B improvements, City has reimbursed Twite $351,912 for City Upsize Improvements, as described In Section 4.02 of this Agreement. ---PAGE BREAK--- K:\Admin\Public Works Committee\Referrals\2010 August\South Missoula Second Amended Agreement.doc 7 Section 8.03. This Agreement may be terminated upon mutual written consent of the Parties hereto. IN WITNESS WHEREOF, Twite and City have set their signatures and seals the day and year in this instrument first above written. LLOYD A. TWITE FAMILY PARTNERSHIP — ACCEPTANCE Date: Lloyd Twite, Manager CITY OF MISSOULA — ACCEPTANCE Date: John Engen, Mayor Attest: Date: Martha L. Rehbein, City Clerk Approved As To Form: Jim Nugent, City Attorney