Document Missoula_doc_74617b0921

AMENDMENT TO THE AGREEMENT DATED SEPTEMBER 15,2008 REGARDING SANITARY SEWER EXTENSION AND UPSIZING FOR THE SOUTH MISSOULA AREA This Amendment to the Agreement Regarding Sanitary Sewer Extension and Upsizing for the South Missoula Area (dated September IS, 200S) made this day 20__ by and between the City ofMissoula, a municipal corporation and political subdivision organized under the laws ofMontana and the City's home rule charter (City) and Lloyd A. Twite Family Partnership (Twite), the Parties. This document amends the Agreement dated September IS, 200S between the City and Maloney Properties, LLC (see attached exhibit 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 I. 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 WGM Group" shall be revised to read "Project Engineer' shall mean Professional Consultants, Inc." 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 II, 2009) Exhibit B - Sewer Letter ofAgreement 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 ofProbable Cost (revised February 4,,2010) Exhibit G - Agreement ofAssignment from Maloney to Twite F:\2001\6S2S-0I Lloyd Twite\Engineering\AMENDMENT TO THE AGREEMENT DATED SEPTEMBER IS.doc I ---PAGE BREAK--- 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 I-IDR Engineering, Inc. in the South Missoula Sewer Evaluation. Twite Force Main: 8-inch Twite Interceptor: 12-inch Twite/Maloney Interceptor: 12-inch and IS-inch Maloney Ranch interceptor IS-inch Lower Miller Creel, Force Main: 8-inch and 12 inch Section 3. The Project. Section 3.0 I. 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 Vyay, 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 ofseven 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 ofMaloney Ranch, the Maloney Ranch Interceptor, the Miller Creel, Pump Station, and the Lower Miller Creel, Force Main from the Miller Creel, 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 3.0'1'. 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. F:\2001\6525-01 Lloyd Twite\Engineering\AMENDMENTTO THE AGREEMENT DATED SEPTEMBER 15.doc 2 ---PAGE BREAK--- 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 ITom 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 ofZone B. A. In order to facilitate coordination ofconstruction 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 vVye 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. Ifwithin one month of the bid opening date for the Miller Creel, 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 "·.02.B of this Agreement. C. Ifwithin 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 3D, 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 ofthe 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. C. IfCity and Twite revise Section 3.10 as outlined in Section 3.1 O.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. F:\200I\6525-0I Lloyd Twite\Engineering\AMENDMENT TO THE AGREEMENT DATED SEPTEMBER I5·doc 3 ---PAGE BREAK--- Section 3.12. Construction of Zone D. By Twite agreeing to relocate the Miller Creel, 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 4.0'1· of this Agreement. Section 3.13.Construction of Zone E. City agrees to construct the Zone E ilnprovements. Section 3.H..Construction of Zone F. City agrees to construct the Zone F improvements. Section 3.15. Construction of Zone G. City agrees to construct the Zone G improvements. Section Allocation ofProject Costs. Section 4·.01. Zone A Funding. Twite agrees to provide funding for the design and construction of the Zone A improvements, the total ofwhich is estimated to be $1,908,630, as shown on Exhibit C. Twite shall provide $77,04.8 to the City upon completion of the construction and acceptance by the City of Zone A for the tilture purchase and installation of four replacement pumps for the lift station. 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. [fwithin one month of the bid opening date for the Miller Creel, 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 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. [n 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 ofwhich is estimated to be $351,912, as shown on Exhibit E. C. Ifwithin 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 vVye Project, City and Twite shall revise Section +.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. F:\2001\6S2S-0I Lloyd Twite\Engineering\AMENDMENTTO THE AGREEMENT DATED SEPTEMBER IS.doc 4 ---PAGE BREAK--- Section '1·.03. Zone C Funding. A. Ifthe Zone C improvements are constructed by City and in service by November 30, 2010 as outlined in Section 3.1l.A, City agrees to provide !lmding 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 3.1 I.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. IfCity and Twite revise Section 3.11 as outlined in Section 31l.C, City ancI. Twite shall revise Section '1·.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 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 ofwhich was estimated to be $352,783, as shown on Exhibit F. By relocating the MilIer 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 5. Additional Undertakings of Citv. 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 Creel, 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. Ifnotice 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 F:\200I\6S2S-0I Lloyd Twite\Engineering\AMENDMENTTO THE AGREEMENT DATED SEPTEMBER IS.doc 5 ---PAGE BREAK--- City I-Iall '1'S5 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: Professional Consultants, Inc. 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. Section 8.03. This Agreement may be terminated upon mutual written consent of the Parties hereto. F:\200I\6525-0I Lloyd Twite\Engineering\AMENDMENTTO THE AGREEMENT DATED SEPTEMBER I5.doc 6 ---PAGE BREAK--- IN WITNESS WHEREOF, Maloney, Twite and City have set their signatures and seals the day and year in this instrument first above written. MALONEY PROPERTIES, LLC - ACCEPTANCE Date: _ Artie Dorris, Manager LLOYD A. TWITE FAMILY PARTNERSHIP - ACCEPTANCE Lloyd Twite, Manager John Engen, Mayor Attest: Date: _ CITY OF MISSOULA - ACCEPTANCE Date: _ Martha L. Rehbein, City Clerk Approved As To Form: Jim Nugent, City Attorney Date: _ F:\2001\6S2S-01 Lloyd Twite\Engineering\AMENDMENTTO THE AGREEMENT DATED SEPTEMBER IS.doc 7 ---PAGE BREAK--- EXHIBIT A Professional Consultants Inc. EnulrlOOfS. f'lunnors. Muppors. , o 1000' 2000' I I I SCALE IN FEET /.4-1 ONE G (NOT SHOWN) bS'~ ANHOLE ON NORTH I IDE OF HWY *93 1 e (NEAR APPLEBEES) TO RESERVE STREET § • ---;r-----IlAADJ:SJ 'D EXISTING SewER 2" STEP 10' STEP 3"ST£P ehibit has not been updated and represents the cost estimates included in the original agreement date September 15, 2 Exhibit E-1 Page 1 ---PAGE BREAK--- EXHIBIT F Professional Consultants Inc. UUlatrlled "~!I;lIn U'I'r1~I.m;t'", Slut.,.\ Project: Project No.: Prepared by: Date: Description: OPINION OF PROBABLE COST South Missoula Sewer Project City Improvements Summary - Zones C, 0 and E South Missoula Sewer Project 6525-01 Gilbert larson 12/31/2009 Summary of City Improvements for Zones C, D and E ZONEC Select 2" Service Connections I I SUBTOTAL I S 60,060 ZONE 0 (this zone may be eliminated) lower Miller Creek Interceptor I I SUBTOTAL I S 352,783 ZONEE 6" F.M. in Upper Miller Creek Road from the Wye to Mockingbird Way I I SUBTOTAL I S 141,757 TOTAL I S 554,600 Exhibit F-1 Page 1 ---PAGE BREAK--- Project: Project No.: Prepared by: Date: Description: OPINION OF PROBABLE (OST South Missoula Sewer Project (ity Improvements - Zone ( South Missoula Sewer Project 6525-01 Gilbert Larson 12/11/2009 City Improvements - Zone C Professional Consultants Inc. U"mall~ed !.pcriu(, UMomp,omi\;nu STanda,dl ITEM DESCRIPTION QTY UNIT Avg. Unit Price TOTAL City Improvements 1 1" HOPE SERVICE (includes valves) 780 LF S 50.00 S 39,000 2 Permits/Bonds/lnsurance/T.C./MOB 1 LS S 3,900.00 S 3,900 SUBTOTAL $ 42,900 Construction Contingency @ 10% S 4,290 Pre-Design Contingency @ 15% $ 6,435 Engineering @15% $ 6,435 TOTAL ZONE C $ 60,060 Notes: Assumes 13 new service lines, estimated at 60 L.F. each Service line includes tap, corporation stop, 1" service line, curb box, and restoration. Assumes work to be included with Miller Creek Road WVe Project Exh F-2 Zone C Page 1 ---PAGE BREAK--- Project: Project No.: Prepared by: Date: Description: OPINION OF PROBABLE COST South Missoula Sewer Project City Improvements - Zone 0 (Orig.) South Missoula Sewer Project 6525-01 Gilbert larson 12/11/2009 City Improvements for Zone D IOrig.) Professional Consultants Inc. Uunal{h.d I.pt""l' ~la.dO!d~ ITEM DESCRIPTION QTY UNIT Avg. Unit Price TOTAL City Improvements 1 15" DIA, PVC Sewer Main (14' Depth) 2400 LF $ 71.00 $ 170,400 2 5' DIA. Manhole,S' Deep 10 Each $ 2,500.00 $ 25,000 3 5' DIA. Manhole, Additional Depth 70 V.F. $ 150.00 $ 10,500 4 Field Surf. Repair 651 LF $ 4.50 $ 2,930 5 Gravel Surface Repair 1250 LF $ 6.60 5 8,250 6 Asphalt Surf. Repair 500 IF $ 24.00 S 12,000 7 Permits/Bonds/lnsurance/T,C./MOB 1 LS 5 22,907.95 5 22,908 SUBTOTAL $ 251,988 Construction Contingency @ 10% $ 25,199 Pre-Design Contingency @ 15% $ 37,798 Engineering @15% $ 37,798 TOTAL $ 352,783 Notes: Does not include any work associated with services. Does not include any work associated with demolition or connection of existing system. Exh F-3 Zone D (Orlg) Page 1 ---PAGE BREAK--- Professional Consultants Inc. I'Delle.ll IJnrOl'l~rQ,"it'~9 S(GQd~ldl OPINION OF PROBABLE COST South Missoula Sewer Project City Improvements - Zone E Project: Project No.: Prepared by: Date: Description: South Missoula Sewer Project 6525-01 Gilbert Larson 12/11/2009 City Improvements for Zone E ITEM DESCRIPTION QTY UNIT Avg. Unit Price TOTAL Force Main -Including City Upsize Improvements 1 6" PVC STEP Main 1300 IF $ 29.00 $ 37,700 2 6" Elbows 3 Each $ 300.00 $ 900 3 Connect to Existing Main - 10"X6" Tap 1 Each $ 2,500.00 $ 2,500 4 6" Gate Valves 2 Each $ 600.00 $ 1,200 5 AiR RELIEF/PIGGING STATION/CLEANOUT 1 Each $ 10,000.00 $ 10,000 6 Field Surface Repair 1300 IF $ 7.50 $ 9,750 7 1" Service line 360 IF $ 50.00 $ 18,000 8 Service Connection 1 L5 $ 12,000.00 $ 12,000 9 Permits/Bonds/lnsurance/T.C./MOB 1 LS $ 9,205.00 $ 9,205 SUBTOTAL $ 101,255 Construction Contingency @ 10% $ 10,126 Pre-Design Contingency @ 15% $ 15,188 Engineering @15% $ 15,188 TOTAL ZONE E $ 141,757 Notes: Assumes 6 new service lines, estimated at 60 IF each Service connection for Kessler Property includes new service line, coordination, pump, and connection of existing service Assumes will be built with Miller Creek Road Wye Project and factored as Field Surface Repair versus Asphalt Exh F-4 Zone E Page 1 ---PAGE BREAK--- Project: increase Prepared by: Date: Description: Professional Consultants Inc. 1'~~li~nr UnromprD'ni\lng ~I".~nldl OPINION OF PROBABLE COST South Missoula Sewer Project City Improvements - Future Lift Station Capacity Increase South Missoula Sewer Project 6525-01 Gilbert larson 2/4/2010 LIFT STATION CAPACITY INCREASE ITEM OESCRIPTION QTY UNIT Avg. Unit Price TOTAL City Improvements 1 30 HP Submersible Pump 4 Ea $ 12,511.00 $ 50,044 2 Electrical Contractor 1 LS $ 10,000.00 $ 10,000 3 Plumbing Modifications 1 LS $ 10,000.00 $ 10,000 SUBTOTAL $ 70,044 Construction Contingency @ 10% $ 7,004 TOTAL FOR LIFT STATION CAPACITY INCREASE $ 77,048 Exh F-5 Future Lift Slation Page 1 ---PAGE BREAK--- MALONEY - TWITE WATER/SEWER AND MILLER CREEKIMWROVEMENTSAGREEMENT THIS AGREEMENT, made thisJi!:':. day of September, 2009, is between MALONEY PROPERTIES, LLC, or assigns ("Maloney") and LLOYD A. TWITE FAMILY PARTNERSHIP, or assigns ("Twite':), for the purpose of making improvements to the Mountain Water Company ("MWC") water system and to the City of Missoula ("City") sanitary sewer system in Miller Creek. This agreement: a) implements the August 6, 2009 Letter of Intent ("LOJ") between Maloney and Twite; and b) is contingent upon Maloney and Twite being able to negotiate, approve and execute contracts with both MWC and City to implement the temlS and conditions of this agreement, which contracts shall be deemed a part of this agreement. WATER SYSTEM REClTALS: A. Maloney has preliminary plat approvals for development of 800 residential dwelling units, parks and 2.9 acres of commercial development within the Teton Addition in the Miller Creek area and requires additional water service to proceed with the development of those units. B. Twite has preliminary plat approvals for development of 672 residential dwelling units, parks and 2.3 acres of commercial development within the Linda Vista Estates and Miller Creek View Additions in the Miller Creek area and requires additional water service to proceed with the development of those units. C. The MWC system that serves the Maloney and Twite properties in Miller Creek is at or near capacity and must be expanded to serve the proposed developments. D. MWC has determined that the proposed water improvements (Exhibit B) described in preliminary plans prepared by WGM Group and Professional Consultants, Inc. for the Miller Creek Water Backbone System will provide the capacity to serve the proposed developments. Maloney- TW;fe Wafer/Sewer and Miller Creek Improvemellls Agreemenf I ---PAGE BREAK--- I ' E. A mutually agreeable method of mitigating water rights (PBS&J Exhibit A) has been signed by Maloney, Twite and MWC (Exhibit This Agreement is in process and will be attached to this "Maloney- Twite Water/Sewer and Miller Creek Improvements Agreement" when it is completed (see item on page 1 of this Agreement). WATER SYSTEM AGREEMENT NOW THEREFORE, Maloney and Twite agree as follows: 1. Twite shall pay Maloney $5,940 for 4.95 acres of surface water rights that are to be provided to MWC for mitigation of water rights for the proposed wells. Payment shall be made prior to start of construction of the Lower Miller Creek Water System Backbone. 2. Maloney shall make available and sell to Twite any additional acres of surface water rights if needed by Twite for Twite's development at a price of $1,200 per acre of surface water rights. Said payment, if necessary, shall be made prior to start of construction of the Lower Miller Creek Water System Backbone. 3. Twite shall construct the Miller Creek Water Backbone System (Exhibit B) to MWC's requirements and specifications; such construction shall be completed by December 31,2010 or within 12 months of receiving DNRC, DEQ and MWC approvals, whichever is later. 4. Twite shall receive all refunds, reimbursement, contributions or other compensations liOIn MWC for the construction of the Mi lIer Creek Water Backbone System. 5. Maloney shall pay Twite $2,338 for each residential or commercial unit in the Maloney Development Project (Teton Addition) that is to be connected to the MWC water system. This $2,338 payment shall be made to MWC/Twite for distribution to Twite. Payment shall be made for all residential or commercial units in each phase prior to any water service being made available to any residential or commercial unit in that phase. For purposes of this agreement, the phrase "residential or commercial unit" refers to the number of separate housing units in original construction a 4-plex constitutes 4 residential units) or to the number of separate businesses in original construction a mini-mall containing 4 businesses constitutes 4 commercia] units). In accordance with Montana Public Service Commission ("PSC") tariffs, there are restrictions as to the amount MWC Maloney-Twite Water/Sewer al1d Miller Creek Improvemel1ts Agreement 2 ---PAGE BREAK--- i ' can collect from Maloney as it files each phase. for example, MWC is only al10wed to collect $2,200 by PSC rules, then Maloney shall directly pay Twite the remaining $138 to make the total payment of $2,338. 6. Twite waives the connection fee ($2,338 per residential or commercial unit) to the Miller Creek Water Backbone System for the first 166 residential or commercial units in Teton Addition as compensation for e'xpenditures Maloney has paid to date. 7. The $2,338 fee for connection to the Mil1er Creek Water Backbone System shall not increase over the life of the Maloney Development Project (Teton Addition) and will be fully transferable/assignable to ariy future new ownership. 8. Maloney shall provide al1 necessary easements and deeds for completion ofthe Miller Creek Water System Backbone west of the Twite Properties, at no cost, and all design and survey information completed to date by WGM Group for the Miller Creek Water Backbone System. Such easements are limited to land owned by Maloney or any related person or entity, such as Artie and Kay Dorris, Mrs. Roy Prock, the Roy Prock QTIP Trust (there may be other landowners or conservation easement owners involved based on final plans). 9. Twite shall provide to Maloney copies ofthe Mil1er Creek Water Backbone System construction plans for review two weeks prior to start of construction. 10. Maloney and Twite shal1 each be responsible for funding and constructing extensions from the Miller Creek Water System Backbones to serve their respective developments. SEWER SYSTEM RECITALS: A. Maloney has Preliminary Plat Approvals for development of 800 residential dwelling units, parks and 2.9 acres ofcol1lmercial development within the Teton Addition in the Miller Creek area and requires additional sewer service to proceed with development of such units. B. Twite has preliminary Plat Approvals for development of 672 residential dwel1ing unit, parks and 2.3 acres of commercial development within Linda Vista Estates and Miller Creek View Addition in the Miller Creek area and requires additional sewer service to proceed with development of such units. A1aloney-Twile WateriSelver and Miller Creek Improvements Agreement , .J ---PAGE BREAK--- C. The City sanitary sewer system that serves the Maloney and Twite properties in Miller Creek is at or near capacity and must be expanded La serve proposed developments. D. The City has determined that the proposed sewer improvements (Exhibit E) described in preliminary plans prepared by WGM Group and Professional Consultants, Inc. for the Miller Creek Sewer Backbone System will provide the capacity to serve the proposed developments. SEWER SYSTEM AGREEMENT NOW, THEREFORE, Maloney and Twite agree as follows: 1. Twite shall pay Maloney $16,470 for value received for design and surveying to date and for Maloney's assignment to Twite of the Sewer AgreemenL (Exhibit G) dated September 15, 2008 between the City and Maloney. Payment shalI be made prior to start of construction of Zones 3 through 5 ofthe Miller Creek Sewer Backbone. 2. Maloney hereby assigns to Twite the Sewer Agreement (Exhibit G) dated September 15, 2008 between the City and Maloney. 3. Twite shall construct Zones 2 through 6, inclusive, of the Miller Creek Sewer Backbone System (Exhibit E) to City's requirements and specifications by December 31,2010 and transfer ownership of the operational system to City. 4. Twite shall receive all refunds, reimbursements, contributions or other compensations fi'om City for construction of the MilIer Creek Sewer Backbone System. 5. Maloney shall pay Twite $2,300 per residential or commercial uniL in the Maloney Development (Teton Addition) that is connected to the City Waste Water System. Payment shalI be made at the time of connection for each residential or commercial unit and shall be paid to City for distribution to Twite in accordance with the Agreement between Twite and City dated This Agreement is in process and will be attached to this "Maloney-Twite WaLer/Sewer and Miller Creek Improvements Agreement" when it is completed (see item on page 1 of this Agreement). li1aloney-Twite Water/Sewer and li1i11er Creek Improvements Agreement 4 ---PAGE BREAK--- , 6. Twite and Maloney agree that the $2,300 fee for connection to the Miller Creek Sewer Backbone System shall not increase over the life of the Maloney Development Project (Teton Addition) and will be fully transferable/assignable to any future new ownership. 7. Maloney shall provide all necessary easements within the Maloney properties for completion of the Miller Creek Sewer Backbone System at no cost. Such easements are limited to land owned by Maloney or any related person or entity, such as Artie and Kay Dorris, Mrs. Roy Prock, the Roy Prock QTlP Trust (there may be other landowners or conservation easement owners involved based on final plans). 8. Maloney shall provide to Twite all design and survey information completed to date for the Miller Creek Sewer Backbone System. 9. Twite shall provide to Maloney copies of the Miller Creek Sewer Backbone System construction plans for review two weeks prior to start of construction. 10. Maloney and Twite shall each be responsible for funding and constructing extensions from the Miller Creek Sewer Backbone System to serve their respective developments. ADDITIONAL PROVISIONS APPLICABLE TO BOTH AGREEMENTS 11. Each party agrees that this Agreement authorizes the other party to enforce the remedy of specific performance. Availability of the remedy of specific performance shall not affect a pmty's right to complete construction, cure or release liens, receive and rely upon construction plans and specifications, be assigned easements, and perform all other acts in the event of a breach by the otherparty. If a party fails to cure a default within thirty (30) days by presenting a curative plan within thirty (30) days and by implementing such plan within the next thirty (30) days after a notice of default is emailed and mailed to the defaulting pmty, then this agreement shall automatically operate as an assignment from the defaulting party of all project plans, easements, contracts, licenses, permits, project control and other rights so as to allow the non-defaulting party the opportunity to immediately undertake completion of remaining construction, reserving all rights to seek damages after completion of construction. The palties agree to execute such documents and perform such acts as reasonably required to implement the foregoing. Maloney-Twile Wafer/Sewer and I'diller Creek Improl'emenfs Agreemel1l 5 ---PAGE BREAK--- • ' I I 12. If litigation arises between the palties with respect to the terms or conditions of this Agreement, the prevailing party in such litigation shall be entitled to an award of reasonable attol11ey's fees in addition to costs of suit. 13. Time is ofthe essence in this Agreement, which is binding upon the successors and assigns of each party. 14. No modification of this agreement will be valid or binding unless the modification is in writing and signed by both parties. 15. This instrument constitutes the entire agreement between the parties. No party will be bound by any tenns, conditions, understandings, warranties, statements or representations, oral or written, not contained in this document. Each party aclrnowledges that execution of this agreement was not induced or motivaled by any promise or representation made by the other party, other than the promises and representations expressly set forth in this document. All previous negotiations, statements and preliminary instruillents by the parties or their representatives are merged into this agreement, except as otherwise expressly provided herein. 16. Ifany provision of this agreement is declared or becomes invalid, unenforccable or contrary to law, then that provision shall be scvered frol11 the remaining provisions of this agreement and will not affect thc validity or enforceability of the other provisions of this agreement. 17. A signature transmitted by fax or other electronic means will be valid, and a copy of this agreement, original or faxed, containing the signatures, original or faxed, of both parties will be enforceable against and binding on both parties. LLOYD A. TWITE FAMILY PARTNERSHIP By: _ Name: J..1~tc! A TitIe: ) } MALONEY PROPERTIES, LLC By: Name: I· rO:Mf Title: /lh, Maloney-Twite Water/Sewer and Miller Creek Improvements Agreement 6 ---PAGE BREAK--- STATE OF MONTANA) ss. County of Missoula ) This instrument was aclmowledged before me on this [}L~day of September, 2009 by Lloyd A. Twite, known to be the Managing Partner of the Lloyd A. Twite Family Pal"tnership. 111111111/ I;lY 8M III"~ / Q;j/,uiill LM/7ldjJ § ~01"'RIA(., § Printed Name ofNotary( 7iup'?i m I'HJ ~ \ i ~ Notary Public for the State ofMOI{tana SEA - R M' 1 M eSI l11g at . ISSOU a, ontana ~ My Commission Expires' c? Y drill ""II/t,c OF lAO . ~ - me 1 u· . / ss. This instrument was acknowledged before me on this day of September, 2009 by known to me to be the Sof Maloney Properties, LLC. Printed Name ofNotary: _ Notary Public for the State of _ Residing at: _ My commission expires: _ A1alol1ey-Twite Water/Sewer al1d Miller Creek Improvemel1ts Agreement 7