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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 COpy This Amended Agreement made this 1'1 day of ~ , 200~, by and between Maloney Properties,~ney), the toYd 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 1 of 7 co y ---PAGE BREAK--- 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 sale 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 2 of 7 ---PAGE BREAK--- 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 20. 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; and 21. 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 3 of 7 ---PAGE BREAK--- 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. 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, if there are funds to be dispersed. 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 Page 4 of 7 ---PAGE BREAK--- lots could be 581. Multi family lots shall be credited at 0.80 of a single family lot. This 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 1 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 5 of7 ---PAGE BREAK--- IN WITNESS WHEREOF, City, Maloney, and Twite have set their signatures and seals the day on this instrument first above written. MALONEY: MALONEYP~EfiL}C BY: LW ' Title: m~n~ er- STATE OF 7ft}) IAAJA; County of II) tI.J ~ This instrument was acknowledged before me on this -r day ofb<2O'-.Jl!if; 2009, by , known to me to be the of Maloney Pr pertles, LLC. Notary Public for the State of Residing at: My Commission Expires: Printed Name of Notary Public: TWITE: Notary Public for the State of ~u Residing at: S So My Commission Expires: l \ 3> Printed Name of Notary Public: 'C LAURIE CLARK NOTARY PUBLIC for the State of Montana ResIding at Missoula, MT My Commission Expires May 01, 2013 LLOYD A. TWITE FAMILY PARTNERSHIP BY: d Title: 01~7~ cP~ STATE OF fV'-vc-k.r"lo,-- County of This instrument was acknowiedged before me on this day of\:e.ee .~2009, by L\oyc\ A vJ~. , known to me to be the as DC' of Lloyd A. Twite Family Partnership. ~ .j c~ Page 6 of? ---PAGE BREAK--- CITY: .I Date: . / ~ City Cieri? Martha L. Rehbein BY: ATT BY: Date: J~J/flr:2;J? 7 7 Page 7 of 7