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Page 1 of 4 SECOND 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__,2010, 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., additional Maloney/Twite contributions and Transportation Impact Fees. RECITALS 7. WHEREAS, after annexing the Project area in 1999, City reconstructed the 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 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 EF). 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 FG); and 17. WHEREAS, WGM Group prepared a 95100% design for necessary improvements in the Project area, dated SeptemberJanuary 17, 20092010(Exhibit and 18. WHEREAS, the City and County Public Works Department has Departments have reviewed and approved the traffic report and 95100% design; and 19. WHEREAS, the City has received bids for construction of the Miller Cr. Road Improvements from Briggs to Mockingbird Way and approximately 500 feet west of Lower Miller Creek Road; and 20. WHEREAS, LS Jensen is the apparent low bidder with a bid price of $2,009,884.08, of which $1,700,410.18 is related to the surface infrastructure improvements (Exhibit and 21. WHEREAS, the total project cost of the Project wasincluding right-of-way acquisition, appraisal & acquisition consultant services, engineering consultant services, and ---PAGE BREAK--- Page 2 of 4 construction is estimated to be $3,121,0002,567,342 as of September 17, 2009February 25, 2010 (Exhibit DE); and 2022. WHEREAS, the City and County have entered into an interlocal agreement dated January 24, 2008 to collect and disburse County collected Miller Creek Transportation Mitigation Funds to the City for this Project. 2123. WHEREAS, Missoula Municipal Code (MMC) 15.66.040 5. Development Impact Fee Procedures and Requirements related to transportation development fee offsets applies to this agreement. ---PAGE BREAK--- Page 3 of 4 AGREEMENT NOW THEREFORE, City, Maloney, and Twite agree as follows: 2. Maloney and Twite agree to partially fund construction of the Project, up to the $3,121,000 $2,567,342 cost estimate, by each equally contributing up to $750$ 600,000 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 $20050,000 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. 3. The City will proceed with awarding the construction contract to LS Jensen for construction, which will commence in 2010. The City will commit financial or construction resources to complete the project as designed, and assume financial responsibility for any amount beyond the $600,000 contributions by Maloney and Twite, as the project goes forward in 2010. The City's financial obligation currently is estimated at $220,330.25, of which $100,000 is included within the construction bid as Miscellaneous Work. The City obligation is to be funded by City Transportation Impact Fees. Additional transportation impact fees, cost savings, and/or changes to the project may be used if current estimated project costs are exceeded. 1. 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, $20050,000 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. Payments to Twite shall be made by the City on a calendar quarterly basis within thirty (30) days of the end of each calendar quarter basis, if there are funds to be dispersed. 2. 6. For the Maloney advanced funds of $550,000, Maloney shall receive credit for 306 single family lots. For the Maloney advanced funds of $20050,000 or actual amount above $550,000, whichever is less, shall be multiplied by a factor of ---PAGE BREAK--- Page 4 of 4 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.is 403 single family lots. Multi family lots shall be credited at 0.80 of a single family lot. This advanced funding of up to $750$600,000 is intended to satisfy Maloney’s obligation to contribute to the Miller Creek Transportation Mitigation Fund. 3. 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. 4. 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. 5. 10. This Second Amended Agreement shall supersede the February 1, 2008 Agreement and December 17, 2009 Amended 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.