Full Text
Page 1 City of Missoula and Lloyd A. Twite Family Partnership Miller Creek Sanitary Sewer Improvements Agreement This Agreement made day of 2009, by and between the City of Missoula (hereinafter referred to as City) and the Lloyd A. Twite Family Partnership or assigns (hereinafter referred to as Twite), for the purpose of making improvements to the City of Missoula Sanitary Sewer System in Miller Creek. WHEREAS, the current City of Missoula Sanitary Sewer System Main that serves the properties in the Miller Creek area is at or near capacity and must be expanded to serve any proposed development; and WHEREAS, through the extension of the proposed new sewer main to Miller Creek, the City can convert existing areas of STEP sewer service to conventional gravity sewer service thereby saving the City operation and maintenance costs from the waste water treatment budget; and WHEREAS, Maloney Ranch, LLC has preliminary plat approval 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 sanitary sewer capacity to proceed with the development; and WHEREAS, Twite has preliminary plat approval for development of 672 residential dwelling units, 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 sanitary sewer capacity to proceed with the development; and WHEREAS, the City of Missoula has determined that the proposed developments are within the Wastewater Facility Service Plan area; and WHEREAS, Twite has approached the City expressing a proposed willingness to finance and construct sanitary sewer mains to serve existing and future developments within the Teton Addition Service Area; and WHEREAS, this extension of the sewer system to the Miller Creek area is necessary to facilitate developer contributions for street improvements to Miller Creek Road; and WHEREAS, upon completion of construction and acceptance by the City of the improvements, Twite will convey all right, title and interest to the City. The City also reserves the right to extend the improvements constructed by Twite to serve properties outside the boundary of the Teton Addition Service Area as long as it is at no expense to Twite; and WHEREAS, the owners of the Teton Addition (Maloney Ranch, LLC) have entered into an agreement titled the Maloney – Twite Water/Sewer Agreement and Miller Creek Improvements Agreement dated September 14, 2009, as shown as Exhibit B. This agreement outlines the payment of rebates to Twite in return for installation of the sanitary sewer improvements; and WHEREAS, the City has the authority to collect fees from the property owners at the time of connection to the sanitary sewer system. ---PAGE BREAK--- Page 2 NOW THEREFORE, BE IT RESOLVED BY THE City Council of Missoula and Twite that the Teton Addition Service Area as shown on Exhibit A be created for the purpose of providing sanitary sewer capacity and the collection of rebate fees by the City: The City agrees to collect $2,300 for each residential or commercial unit in the Teton Addition Service Area that is connected to the City of Missoula Sanitary Sewer system. The collection of this payment for each residential commercial unit shall be made at the time of the submittal of the application to the City to connect the residential/commercial unit to the City’s sanitary sewer. If any sanitary sewer connections occur payment shall be made to Twite in the amount of $2,202 for each sanitary sewer connection and the City shall retain $98.00 for each sanitary sewer connection for City collection and administrative costs. 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. 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 commercial units). If sewer facilities are installed in a park, the park will be considered one commercial unit. TERMINATION. This agreement shall become effective upon approval by the Council of the City of Missoula and the Lloyd A. Twite Family Partnership. The agreement shall remain in full force and effect as stated unless terminated according to the provisions of this section. The agreement can be terminated by mutual written consent of the parties. This agreement expires on December 31, 2035. If however, the preliminary plat approval of the Teton Addition at Maloney Ranch is extended beyond this date or another preliminary plat approval is granted by the City Council for any portion of the property within the service boundary of this agreement with an approval period beyond this date, this agreement shall be extended to coincide with the new preliminary plat approval period date. IN WITNESS WHEREOF, City and Twite have caused this instrument to be duly executed by their proper officers on the day of , 2009. ---PAGE BREAK--- Page 3 LLOYD A. TWITE FAMILY PARTNERSHIP Lloyd A. Twite STATE OF MONTANA ) ) ss. County of Missoula ) On this day of , 2009, before me, the undersigned, a Notary Public for the State of Montana, personally appeared Lloyd Twite of Lloyd A. Twite Family Partnership, known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Official Seal on the day and year in this certificate first above written. (SEAL) Printed Notary Name: Notary Public for the State of Montana Residing at My Commission Expires: . MM/DD/YYYY CITY OF MISSOULA Approved as to form and content: Jim Nugent, City Attorney BY: ATTEST: John Engen, Mayor Martha L. Rehbein, City Clerk (SEAL) ---PAGE BREAK--- ---PAGE BREAK--- MALONEY - TWITE WATER/SEWER AND MILLER CREEKI~ROVEMENTSAGREEMENT THIS AGREEMENT, made this I~day of September, 2009, is between MALONEY PROPERTIES, LLC, or assigns C'Maloney") and LLOYD A, T\VITE FAMILY PARTNERSHIP t or assigns ("Twite"), for the purpose of making to the Mountain Water Company c"MWC") water system and to lhl:: City of Missoula rCity") sanitary sewer system in Miller Creek. This agreement: a) implements the August 6, 2009 Letter of Intent ('ILOr') between Maloney and Twite: and b) is contingent upon Maloney and Twite being able lo negotiate, approve and execute contracts with both MWC and City to implement the tenns and conditions of this agreement, which contracts shall be deemed a part of this Cibrreement. VVATER SYSTEM REelTALS: A. Maloney has preliminary plat approvals for developlnent of gOO 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. Twi1te has prclilninary 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 ncar capacity and must be expanded to serve the propus~d developments. D. MWC has detenl1ined that the proposed water improvements (Exhibit B) described in preliminary plalls prepared by WGM Group and Professional Consultants, Inc. for the Miller Creek Water l:lackhonc System will provide the capacity to serve the proposed developments. Maloney- Twite J'fIalerlSewer and lvIi/fer Creek Improvements z e6ed 8lIMl OX011 d£O:lO 600Z 'ao lJO ---PAGE BREAK--- 12. If litigation arises between the parties with respect tu the terms or conditions of this Agreement, the prevailing party in such liUgation shall be entitled to an award of reasonable attorney's fees in addition to costs of suit. 13. Time is of the essence in this Agreement, which is binding upon the successors and a55ign~ of each party. 14. No modification or this agreement will be valid or binding unless the modification is in writing uno signed by both pUrLie~. 15. This instrument constitutes the entire agreement between the parties. No party will be bound by any terms, conditions, understandings, warranties, statemenls or representations, oral or written, not contained in this document. Each party acknowledges that execution of this agreement was not induced or motivated 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 l statements and preliminary instruments by the parties or theIr r(;pre~entalive~ are merged into lhi5 agreement l except as othcn.visc expressly provided herein. 16. If any provision of this agreement is declared or becomes invalid, unenforceable or contrary to law, then that provision shall be severed from the remaining provisions of this agreement and will not affect the validity or enforceability of the other provisIOns of this agreement. 17. Asignature transmitted by fax or other electronic means will be valid 1 and a copy of this agreemcnt1 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: / i/ d ~ N.arne: ~ 16 ~.tt Title: Jdaa"):h) l~ MALONEY PROPERTIES, LLC By: ~ trP'-' N T SA arne: 6aur v , T" I ltle: [J a e'C Maloney- Twite WQfer/Sewer and Miller Creel, Impruvemef1[s /1greemt.!nt 6 r a6l?d S80Z-tSZ-90f7 ---PAGE BREAK--- STATE OF MONTANA) : 55. County of Missoula' This instrument was acknowledged before me on this ~ay of September, 2009 by Lloyd A. Twite, known to be the Managing Partner of the Lloyd A. 1\1\4tfilt~amily Partnership. SA;/III~I ~ . 2 ~ ~ . ~ ~ ~.Ll"t I (\,\OT~RIA( \ ~ Printed arne ofN ta~;.]uM % 8 E A L ! § Notary Public for the State of M ntana Residing at Missoula, Monta~ ~ "1111/ OF My Commission Expires: ( ~i d,e dol/ 55. County of ) This instrument was acknowledged before me on this \,~l--day of September, 2009 by t MYO'i3 S'btll v-..y known to me to be the ~-:Sec \ of Maloney Properties, LLC. Printed Name of Notary: _ Notary Public for the State _ Residing at: My cOlllmission expires: e OONNA L WHEELER. Notary PubUc • SEAL. My Commission Expires: 11 ~19·2009 In Marlon County Maloney~Twite Water/Sewer and A1iller Creek Improvements Agreement 7 V efred ~LIML GA011 d£O:ZO 600Z'ao LJO