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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 gxtension and Ups,izing; for the South Missoula Area (dated September 15, ~2008) made this { day 20.1.a- 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 Only those sections of the Agreement that are modified are shown, unci the modifications to the Agreement are shown in bold. For good and val uable consideration, the Parties hereby represen t, 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 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 11,2009) Exhibit B - Sewer Letter of Agreement between Maloney and Lloyd A. Twite fami! y Partnership (unchanged) Exhibit C - Zone A Improvements Opinion of Probable Co~t (revised December :3 I, 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 2010) Exhibit G - Agreement of Assignment from Maloney to Twite F:\2001\6525-01 Lloyd Twite\Engineering\AMENDMENT TO THE AGREEM,ENT DATED SEPTEMBER IS. doc ---PAGE BREAK--- Section 2, Recitals Section 2.09 City has agreed to upsize the Maloney/Twite Improvements ft'om the si"es identified in Section 2.08 of this Agreement to the following main sizes idelltifled 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 I5-inch Maloney Ranch interceptor I5-inch Lower Miller Creek Force Main: 8-inch and 12 inch Section 3. The Project. Section S.O 1. Project Description. This project consists of the Twite/Maloney Interceptol' fi-om Lower Miller Creek Road to the northern boundary of Maloney the Maloney Ranch InterceptOl', the Miller Creeh: Pump Station, the Lower Miller Creek Force Main fi'om the Miller Cree It Pump Station to Briggs Street, the Lower Miller Creel,: Interceptor, the Linda Vista Boulevard interceptor, the six-inch force main in UppeI' Miller Creek Road fi'om the Miller Creek Road Wye to Mockingbird Way, and service con nections 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 orZone A. Project Engineer shall prepare plans and specifications for Zone A, which shall be defined as a portion of the Twite/Maloney r nterceptor f1'om Lower Miller Creek Road to the northern boundary of Maloney Ranch, the Maloney Ranch Interceptor, the Miller Creek Pump Station, and the Lower MilleI' Creel( Force Main from the Miller Creek Pump Station to the approximate break point between Zones A Hnd B, as showIl on Exhibit A. Section S.OS, Design orZone B. City (replaces Project Engineer) shall prepare plans and specifications for Zone B, which shall be defined as the Lower Miller Creek Force Main fi'om 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 prepure plans and specifications for Zone C, which shall be definecl as select service connections to existing properties in Zone B, as shown on Exhibit A. Section S,06t 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\6S25-01 Lloyd Twite\Engineering\AMENDMENT TO THE AGREEMENT DATED SEITEMBER 15,doc 2 ---PAGE BREAK--- Section S.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 I nterceptol', as shown on Exhibit A. Section S.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 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 1\ improvements to be completed by December SI, 2010. Section 3,10. Construction of Zone B. A. In order to facilitate coordination efforts, City agrees to construct Zone B improvements with the Miller Creel;: Road Wye Project provided the Zone B improvements are constructed and in service by November so, 2010. City will determine within one month of the bid opening date for the Miller Creek Road \Vye Project or by April 1,2010, whichever occurs first, if the Zone B improvements will be constructed by City and in service by November 030,2010. B. lfwithin one month of the bid opening c1ate far the Miller Creek Road 'vVye Project or by April 1, 2010 City determines the Zone B improvements will not be by City and in service by November so, 2010, Twite may choose to construct the Zone 13 improvements in advance of the Miller Creek Road Wye Project. In this case, City will contribute funds to the Project as outlined in Section '1o.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 /lot be constructed by City and in service by November so, 2010 and Twite chooses not to construct the Zone B improvements in advance orthe Miller Creek Road Wye Project, City and Twite shall revise Section S.10 of this Agreement to allow fol' an adjusted timeline tal' the Project. Said revisions must be agreed upon by mutual written consent of the Parties hereto. Section S.ll. Construction of Zone C. A. If Zone B improvements are constructed by City as outlined in Section of this Agreement, City agrees to 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 3.09.8 of this Agreement, Zone C improvemen ts will not be constructed as a part of this Projec t. C. IfCity and Twite revise Section S.10 as outlined in Section S.IO.C, City and Twite shall also revise Section 09.11 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:\2001\6525-01 Lloyd Twite\Engineering\AMENDMENTTO THE AGREEMENT DATED SEPTEMBER IS.doc 3 ---PAGE BREAK--- 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 3.1 3.Construction of Zone E. City agrees to construct the Zone E improvements. Section of Zone f. City agrees to construct the ZOlle F' improvements. Section S.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 fa!' 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. Twite shall provide $77,04.8 to the City upon completion of the construction and acceptance by the City of Zone A fol' the future purchase and installation of four replacement pumps for the lift station. Section 4,.02. Zone B Funding. A. If the Zone B improvements are by City and in service by November 30, 2010, City agrees to provide funding for the clesign and construction of Zone B improvements to be built in conjunction with the Miller Cree), Road Wye Project, the totCl) of which is estimated to be $353,12.'3, as shown on Exhibit D. B. Ifwithin one month of the bid opening clate for the Miller Creek Ii.oad Wye Project or by April], 2010 City determines the Zone B improvements will not be constructed by City and in service by November so, 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,l2.'3, 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 Creel, Hoad Wye Project or by April 1, 2010 City determines the Zone B improvements will not be by City and in service by November so, 2010 and Twite chooses not to the Zone B improvements in advance ofthe MilIer Creek Road Wye Project. City and Twite shall revise Section 4.02 of this Agreement to determine appropriate funding based 011 an acljusted timeline for the Project. Said revisions must be agl'eeclupon by mutual written consent of the Pnrties hereto. F:\2001\6S2S-0l Lloyd Twite\Engineel'ing\AMENDMENTTO THE AGREEMENT DATED SEPTEMBER Is·doc 4 ---PAGE BREAK--- Section 4.03. Zone C A. If the Zone C improvements are constructed by City and in service by November 2010 as outlined in Section S.ll.A, City agrees to provide funding for the design and construction ofimprovements 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 3.11.13 of this Agreement, the Zone C improvements will not be constructed as part of' this Project, so IlO funding fol' Zone C improvements will be required by either Party. C. rfCity and Twite revise Section S.11 as outlined in Section 311.C, City and Twite shall revise Section '1-.03 of this Agreement in conjunction with revisions to Section 3.1 1. 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 Creel{ Pump Station to property in the control of Twite, the need fol' 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 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. Ifnotice is required to be given to any party under this Agreement, notice shall be deemed to have been given to such party, ifnotice is sent by first class mail to the representatives at the party designated below. City: City of Missoula City Engineer F:\2001\6S2S-01 Lloyd Twite\Engineering\AMENDMENTTO THE AGREEMENT DATED SEPTEMBER Is.doc 5 ---PAGE BREAK--- Twite: City Hall '1<35 Ryman St. Missoula, MT 59802 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 B. Termination. Section B.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 $S51,912 for City Upsize Improvements, as described In Section 4.02 of this Agreement. Section B.OS. This Agreement may be terminated upon mutual written consent or the Parties hereto. F:\2001\6525-01 Lloyd Twite\Engineering\AMENDMENTTO THE AGREEMENT DATED SEPTEMBER Is.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 tff..~. 6/f'f! ~ ~ . Date - Artie D ris, Marfagel' Attest: LLOYD A. TWITE FAMILY PARTNERSHIP - ACCEPTANCE ( (tl- . Date: ~ IS - f ~ CITY OF MISSOULA - ACCEPTANCE Date: t/,Ht 51, fO EITt. lED !,~!S5ntlt..\ ,l,\omWJ PllONt 4Q~-i1S-1ESQ fAX40&'72S~16 MALDNEY RA.'iClf ZQHU. LEGEND lOME II ZOME B C ZONE D CrulL) ZONE E ZONE r EXISTING SEWER 2~ STEP 3~ STEP '~~STEP 6"'STEP e~ GR/\V!TY IT" STEP EXHIBIT A TO 10" STEP SAfHTM~Y r,IArIHOLES o 1000' 2000' RE!...::ASE Vt,LVE PIG PORT W SEPTiC TAHI~ FEET ---PAGE BREAK--- EXHIBITB Letter of Agreement The purpose of1his letter of agreement is to understand the division of the responsi bilities and duties for the sewer main construction to provide service to the Maloney Ranch, LLC and the Uoyd A Twite Family Partnership properties. The construction has been divided into six mneB as shown on the attached drawing (see attached) prepared by WGM Group. Lloyd A Twite Family Partnership shall be responsible for the construction of Zone 1, Zone 2 and Zone 6. Maloney Ranch, LLC shall be responsible for the construction of Zone 3, Zone 4 and Zone S. The responsibilities and duties for the construction of each zone shall include the design permitting, bidding, agreements for City contributions, construction, inspections and certifications. WGM Group will provide to PCI the following information for the sewer main through Zone 2: . • Existing ground profile on plans • Finish grade profile on plans • Final sewer main alignment Final manhole locations • Final sewer main grade and elevations PCl will use provided information for preparing construction plans, DEQ approval, City approval, etc. Construction shall be to the lines and grades provided by WGM Group, unless changes are approved by W~M Group . . WGM Group will provide the above information to PCl no later than July-31, 2008. Upon WOM Group's submittal of information to PCl, Lloyd A Twite Family Partnership agrees to pay Maloney Ranch, LLC $10,000 for the work performed by WGM Group through Zone 2. In addition to the above responsibilities and duties, the Lloyd A Twite Family Partnership shall provide to Maloney Ranch, LLC the easements necessary for the construction 0 f Zone 5 that may cross the Linda Vista Executive Golf Course or other property in the control of the Lloyd A Twite Family Partnership. Similarly, the Maloney Ranch, LLC shall provide easements necessary for the construction of Zone 2 that may cross property in the control of Maloney Ranch. LLC. Where both parties are interdependent on each other for the completion of Zones 2 through 6 of the sewer, it is agreed that the construction of these five zones shall be completed by December 31, 2010. TIlls agreement witnessed by the signatures below: On behalf of MaJoney Ranch, L C s - all Date Date Lloyd A Twite Family Partnership Page B·1 ---PAGE BREAK--- Project: Project No.: Prepared by: Date: Description: ITEM EXHIBIT C OPINION OF PROBABLE COST South Missoula Sewer Project Zone A South Missoula Sewer Project 6525-01 Gilbert Larson 12/31/2009 Zone A Improvements DESCRIPTION QTY Force Main -Including City Upsize Improvements 1 12" PVC Force Main 2290 2 8" PVC Force Main (in shared trench) 2290 3 Miller Creek Pump Station 1 4 8" Bends 10 5 12" Bends 10 6 Field Surf. Repair 780 7 Gravel Surface Repair 0 8 Asphalt Surf. Repair 160 9 Sod Repair 1350 10 Isolation Vaults 2 11 Permits/Bonds/lnsurance/T.C./MOB 1 SUBTOTAL Construction Contingency @ 10% Pre-Design Contingency @ 15% Engineering @15% TOTAL ITEM DESCRIPTION QTY 1 15" Dia. PVC Sewer Main (12'Depth) 6750 2 4' Dia. Manhole,S' Deep 23 3 4' Dia. Manhole, Add Dep. 161 4 Field Surf. Repair 3120 5 Gravel Surface Repair 2250 6 Asphalt Surf. Repair 1380 7 Permits/Bonds/lnsurance/T.C./MOB @ 10% 1 SUBTOTAL Construction Contingency @ 10% Pre-Design Contingency @ 15% Engineering @15% TOTAL TOTAL ZONE A Notes: Does not Include right-of-way. Exh C-l Zone A Professional Consultants Inc. Unmolcher! !xpetienr€ lJn{omp!omj~lng Sl!lndorrls UNIT Avg. Unit Price TOTAL LF $ 41.00 $ 93,890 LF $ 18.00 $ 41,220 EACH $ 370,000.00 $ 370,000 EACH $ 400.00 $ 4,000 EACH $ 900.00 $ 9,000 LF $ 7.50 $ 5,854 LF $ 11.00 $ LF $ 40.00 $ 6,400 LF $ 12.00 $ 16,200 EACH $ 42,000.00 $ 84,000 LS $ 63,056.37 $ 63,056 $ 693,620 $ 69,362 $ 104,043 $ 104,043 $ 971,068 UNIT Avg. Unit Price TOTAL LF $ 65.00 $ 438,750 EACH $ 2,200.00 S 50,600 VF $ 100.00 $ 16,100 LF $ 7.50 $ 23,406 LF $ 11.00 $ 24,750 LF $ 40.00 $ 55,200 LS $ 60,880.63 $ 60,881 $ 669,687 $ 66,969 $ 100,453 $ 100,453 $ 937,562 $ 1,908,630 Page 1 ---PAGE BREAK--- Project: Project No.: Prepared by: Date: Description: ITEM EXHIBIT D OPINION OF PROBABLE COST South Missoula Sewer Project Zone B South Missoula Sewer Project 6525-01 Gilbert Larson 12/11/2009 Zone B Improvements DESCRIPTION QTY Force Main -Including City Upslze Improvements 1 12" PVC and B" pvc Force Main (in shared trench) 3000 3 Bends (each location) 6 5 Field Surf. Repair 0 6 Gravel Surface Repair 0 7 Asphalt Surf. Repair 100 8 Sod Repair 0 9 Isolation Vaults 2 10 Permits/Bonds/lnsurance/T.C./MOB 1 SUBTOTAL Construction Contingency @ 10% Pre-Design Contingency @ 15% Engineering @IS% TOTAlZONEB Notes: Does not include right-of-way. EJch D-1 Zone 8 Professional Consultants Inc. UJinloliked f UIi(!lmp,onf\I~9 UNiT Avg. Unit Price TOTAL LF $ 45.00 $ 135,000 EACH $ 1,050.00 $ 6,300 LF $ 7.50 $ IF $ 11.00 $ IF $ 40.00 $ 4,000 LF $ 12.00 $ EACH $ 42,000.00 $ 84,000 LS $ 22,930.00 $ 22,930 $ 252,230 $ 25,223 $ 37,835 $ 37,835 $ 353,123 Page 1 ---PAGE BREAK--- EXHIBIT E OPINION OF PROBABLE COST South Missoula Sewer Project Professional Consultants Inc. U~mu!d,e-d I \lr.~dnld\ City Upslze Improvements Summary - Zones A and B Project: Project No.: Prepared by: Date: Descriptfon: South Missoula Sewer Project 6525-01 Gilbert larson 2/4/2010 City Upslze Improvements for Zones A and B ZONE A - FORCE MAIN Upsize from 8" to 14" Force Main ZONE A - GRAVITY MAIN Upsize from 10" to 15" Gravity Sewer Main ZONEB Upsize from 8" to 14" Force Main TOTAL UPSIZE Note: T 1 1 1 SUBTOTAL I $ 173,441 T SUBTOTAL T $ 86,795 [ SUBTOTAL I $ 91,676 1$ 351,912 This Exhibit has not been updated and represents the cost estimates included in the original agreement date September 15, 1 Exhibit E·1 Page 1 ---PAGE BREAK--- EXHIBIT F OPINION OF PROBABLE COST South Missoula Sewer Project Professional Consultants Inc. Ulilnoll htd t lpfli.flit. UnfOOlpIOfni\HUJ SIUll co!d\ City Improvements Summary - Zones 0 and E Project: Project No.: Prepared by: Date: South Missoula Sewer Project 6525-01 Gilbert Larson 12/31/2009 Description: Summary of City Improvements for Zones C, D and E ZONEC Select 2" Service Connectfons ZONE 0 (this zone may be eliminated) Lower Miller Creek Interceptor ZONEE 6" F.M. in Upper Miller Creek Road from the Wye to Mockingbird Way TOTAL Exhibit F·1 I I SUBTOTAL I $ 60,060 I I SUBTOTAL I $ 352,783 I I SUBTOTAL I $ 141,757 I $ 554,600 Page J ---PAGE BREAK--- Project: Project No.: Prepared by: Date: Description: ITEM OPINION OF PROBABLE COST South Missoula Sewer Project City Improvements - Zone C South Missoula Sewer Project 6525-01 Gilbert Larson 12/11/2009 City Improvements· Zone C DESCRIPTION QTY City Improvements 1 1" HDPE SERVICE (includes valves) 780 2 Permits/Bonds/lnsurance/T.C./MOB 1 SUBTOTAL Construction Contingency @ 10% Pre-Design Contingency @ 15% Engineering @15% TOTALZONEC Notes: Assumes 13 new service lines, estimated at 60 F. each Service line Includes tap, corporation stop, 1" service line, curb box, and restoration. Assumes work to be Included with Miller Creek Road Wye project Exh F-2 Zone C Professional Consultants lnc. UCfnoiched hllUiflHf Sionotlld\ UNIT Avg. Unit Price TOTAL LF $ 50.00 $ 39,000 LS $ 3,900.00 $ 3,900 $ 42,900 $ 4,290 $ 6,435 $ 6,435 $ 60,050 Page 1 ---PAGE BREAK--- Project: Project No.: Prepared by: Date: Description: ITEM OPINION OF PROBABLE COST South Missoula Sewer Project City Improvements - Zone D (Orig.) South Missoula Sewer Project 6525-01 Gilbert Larson 12/11/2009 City Improvements for Zone D (Orig.) DESCRIPTION QTY City Improvements 1 15" DIA. PVC Sewer Main (14' Depth) 2400 2 5' DIA. Manhole, 5' Deep 10 3 5' DIA. Manhole, Additional Depth 70 4 Field Surf. Repair 651 5 Gravel Surface Repair 1250 6 Asphalt Surf. Repair 500 7 Permits/Bonds/lnsurance/T.C./MOB 1 SUBTOTAL Construction Contingency @ 10% Pre-Design Contingency @ 15% Engineering @15% TOTAL 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 0 (Orig) Professional Consultants [nco illlf'IIUIt UIHOUl£)-Wn!!\HI9 UNIT Avg. Unit Price TOTAL LF $ 71.00 S 170,400 Each $ 2,500.00 $ 25,000 V.F. $ 150.00 S 10,500 LF $ 4.50 S 2,930 LF $ 6.60 S 8,250 LF $ 24.00 S 12,000 L5 $ 22,907.95 S 22,908 $ 251,988 $ 25,199 $ 37,798 $ 37,798 $ 352,783 Page 1 ---PAGE BREAK--- OPINION OF PROBABLE COST South Missoula Sewer Project Prolessional Consultants Inc. Otttn1I1 ---PAGE BREAK--- 6. Twite and Maloney agree that the $2,300 fee for cOl1nection (0 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 nlture 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 QTIP 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 tvvo weeks prior to stal'( construction. 10. Maloney and Twite shall each be responsible for funding H nd 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 ofspeciCic performance shall not affect a party's right to complete constructioll, cLire 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 presen ting 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 party, 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 parties agree to execute such documents and perform acts as reasonably required to implement the foregoing. lv/aloney-Twite Wafer/Sewer and Miller Creek ill1jJl'o\lell1el7fs ilgreclI1cn! 5 ---PAGE BREAK--- 12. lflitigation arises between the paliies with respect to the terms or conditions of this Agreement, the prevailing party in such litigation 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 assigns of each party. 14. No modification of this agrecment will be valid or binding unless [lie modification is in writing and signed by both parties. 15. This instrument constitutes the entire agreement betv/ccn the paJ'lics. No party will be bound by any terms, conditions, understandings, warranties, slatements OJ' representations, oral or written, not contained in this document. Each pany 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, statements and preliminary instruments 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 illvalid, unenforceable or contrary to 18\v, then that provision shall be severed CrClI11 lhe remaining. provisions of this agreement and will not affect the validity or enforccability of lhe olhel' provisions of this agreement. 17. A signature transmitted by [ax or other electronic mcans will be valid, and Ll copy oflhis agreement, original or faxed, containing the signaturcs, original or i'axcd, oj' both parties will be enforceable against and binding on both parties. LLOYD A. TWITE FAMILY PARTNERSHIP By: dU Name: 1"'1 d A t" Title: < ;t'c Po IL.T j I l\1ALONEY PROPERTIES, LLC < / By: ! , N a me: _5:.L./LL' Ti tI e: _ Maloney-Twite Water/Sewer and Miller Creek Improvelllel7ts Agl'eell1ellf 6 ---PAGE BREAK--- STATE OF MONTANA) SS. County of Missoula ) This instrument was acknowledged before me on this (~o/~dny of September, 2009 by Lloyd A. Twite, known to be the Managing Panner of the Lloyd A. Twite Family Partnership. 111/11111 slvt 11111 f) . J I ~ ~ r\~OIARIAi·· ~ Printed Name ofNotary( 1'4a.d4 m /iLI; ~ 1 i § Notary Public for the State of MOI{tana SEA M' ] M ~ tJl\. $ \.eSI lI1g at ISSOU a, ontana My Commission Expires: J¥Y d.J-' cl 0. ~ # I .///111 J 1111\\\\\ SS. This instrument ~as acknowledged before me on this 1\ \ clay of September, 2009 by known to me to be the S of Maloney Properties, LLC. Printed Name of Notary: _ Notary Pub] ic for the State of Residing at: My commission expires: _ ~ ~6 DONNA L. WHEELER. Notary Public My Commission Ex(lires: 11-19-2009 , • Rosiding in Marion County Maloney-Twite Water/Sewer and Miller Creek Improvemel1ts Agreement 7