Lift Development AgreementLIFT DEVELOPMENT AGREEMENT
This LIFT DEVELOPMENT AGREEMENT ("Agreement") is made and entered into as
of the 30th day of November, 2005, by and between Touchstone, LLC, Northstar Associates,
LLC, 520 Three Mile Drive Associates, LLC and City of Kalispell (collectively, the
"Participants") KALISPELL BOWSER CREEK ASSOCIATES, LLC, a Montana limited
liability company ("Developer").
RECITALS:
A. Developer is the owner of that certain real property located in the City of
Kalispell, County of Flathead, State of Montana ("Developer's Tract") more specifically
described in Exhibit A attached hereto and incorporated herein by reference.
B. The Participants each own tract(s) of real property in the vicinity of the
Developer's Tract (collectively, the "Participants' Tracts") as more specifically described in
Exhibit A.
C. In connection with development of both the Developer's Tract and the
Participants' Tracts each party needs to provide for sewage lift station.
D. The parties have decided to have Developer construct one sewer lift station and
the Developer and the Participants have agreed to pay their proportionate share of the cost of
such construction work, as more particularly described below.
E. Upon completion of the lift station, the station and the land on which it is located
shall be deeded to the City of Kalispell, which shall be responsible for its operation.
F. The parties desire to enter into this Agreement to set forth their understanding and
agreement regarding the performance of the foregoing work and responsibility for the costs
thereof.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE 1
SITE CONSTRUCTION DOCUMENTS
Section 1.1 Description of Initial Lift Work. Developer shall construct a sewer lift
station in accordance with the terms and conditions of this Agreement.
Section 1.2 Plans and Specifications. Attached hereto as Exhibit "B" is a detailed list
of the plans and specifications prepared by Thomas, Dean & Hoskins, Inc. ("Project Engineer")
for the Lift Work, as defined below.
MH-Lift Development Agmt-12-1-05
The Participants have reviewed and approved the plans and specifications described on
Exhibit "B" (collectively hereafter the "Lift Plans") and hereby authorize and approve the
performance of the work therein described (collectively the "Lift Work") in substantial
accordance with the Lift Plans. Except as may be necessary to satisfy any greater requirements
of any governmental authority having jurisdiction thereover, no material changes shall be made
to the Lift Plans as they relate to or affect the Participants' Tracts without the prior approval of
the Participants, which approval shall not be unreasonably withheld, delayed or conditioned.
Notwithstanding the foregoing, Developer shall have the right to make any changes it desires to
the Lift Plans as they relate to or affect the Developer's Tract.
Section 1.3 Contract Bids. Developer has selected and the Participants have approved
LHC Incorporated as the general contractor (the "General Contractor") to perform the Lift Work.
The Contractor's bid is attached hereto as Exhibit C and incorporated herein by reference.
Developer shall be responsible for the procurement of all necessary permits, variances, special
uses and other approvals required to perform the Lift Work. Developer shall be responsible for
entering into a contract with the General Contractor and for having all Lift Work completed as
more expressly provided herein. The Participants shall cooperate fully with Developer in
connection with such procurements including, but not limited to, the signing of applications or
other documents which are necessary to be signed and/or submitted by the owner of the real
property affected. Upon execution of the Lift Work contract (the "Construction Contract"), said
contract, together with the Lift Plans and this Agreement, shall constitute the "Site Construction
Documents."
ARTICLE 2
CONTRACT ADMINISTRATION
Section 2.1 Supervision of the Work. Developer has appointed Thomas, Dean &
Hoskins, Inc. to act as its construction manager to supervise and observe the General
Contractor's performance of the Lift Work and completion of the Lift Work substantially in
accordance with the Site Construction Documents and in good workman like manner.
Section 2.2 General Inspection Rights and Correction of Defects. During the
construction of the Lift Work, any party may inspect the same, and Developer shall use
commercially reasonable efforts to cause its contractor to correct any deficiencies in the work or
materials, or any elements of the work which do not comply with the requirements of the Site
Construction Documents, which are called to Developer's attention, or of which Developer
otherwise becomes aware.
ARTICLE 3
PROGRESS PAYMENTS
Section 3.1 Application for Payment. The Construction Contract shall provide that
not more frequently than monthly after the Lift Work has begun, the General Contractor shall
submit to Developer an application for payment (hereinafter "Application for Payment") which
describing the work which has been performed in accordance with the Lift Plans and for which
MH-Lift Development Agmt-12-1-05 -2-
payment is being sought, (ii) is certified as correct by the Project Engineer identified in Section
1.2, (iii) provides for a retainage of ten percent (10%), and (iv) is accompanied by copies of
invoices and appropriate mechanic lien waivers for all labor, suppliers, materialmen, contractors
and subcontractors for which payment is requested.
Section 3.2 Payment for Design Work. The Participants and Developer acknowledge
that Thomas Dean & Hoskins has previously completed some design work for the Lift Station in
order to accommodate additional capacity requirements. The cost for this design work is
$13,763.25 ("Preliminary Design Cost"), which shall be paid by the Developer and Participants
based upon their Pro Rata Shares, as set forth in Section 3.3 below upon establishment of the
Escrow Account, as defined in Article 4 below.
Section 3.3 Timely Payment. The parties shall be responsible to pay their Pro Rata
Share (as defined below) provided that Developer shall be responsible to advance on behalf of
the Participants (subject to reimbursement as described in Section 4.1 below) then due for the
Lift Work performed and certified as described in such monthly Application for Payment.
Unless the General Contract provides for some other time for payment, progress payments due
under this Section shall be due and payable within twenty (20) days following delivery of each
Application for Payment pursuant to Section 3.1 above. For the purpose of this Agreement, each
parties' Pro Rata Share shall be as follows:
(A) Developer's Pro Rata share shall be 9.81 %
(B) Touchstone, LLC's Pro Rata share shall be 17.67%;
(C) Northstar Associates, LLC Pro Rata share shall be 17.98;
(D) 520 Three Mile Drive Associates, LLC's Pro Rata share shall be 6.71 %;
(E) City of Kalispell's Pro Rata share shall be 47.83%.
Section 3.4 Change Orders. All changes which are required to conform the Site
Construction Documents to any higher standards required by any governmental agency,
authority, code, law or site conditions shall be borne based on Pro Rata Share of the parties.
Without otherwise limiting the foregoing, the cost of any changes which are made which benefit
only some of the parties or their properties shall be the responsibility of just those parties who
benefit from such changes on an adjusted pro rata basis.
Section 3.5 Final Payment. Upon receipt by Developer of certification by the Project
Engineer of substantial completion of the Lift Work (subject only to completion of minor punch -
list items), together with a final Application for Payment in the form provided above,
accompanied by appropriate final waiver of liens and claims of lien signed by the General.
Contractor and all subcontractors and suppliers in privity of contract with Developer or the
General Contractor involved in the performance of the Lift Work, and all government
inspections, approvals and/or completion certificates required for such work, Developer agrees
(subject to reimbursement as described below) to advance on behalf of the Participants the final
amount due for the Participants' Allocations; and Developer shall be responsible to pay 100% of
MH-Lift Development Agmt-12-1-05 -3- t
the amount then due for the balance of the Lift Work completed and certified as described in
such final Application for Payment.
Section 3.6 Failure to Pay. In the event any party fails to make timely payments
required under this Article 3 (such party hereinafter the "Non -Paying Party"), the other party
may, advance directly to the General Contractor such amount as is required to cure any such
default by the Non -Paying Party, and thereafter recover from the Non -Paying Party all sums so
advanced together with costs, attorneys' fees and interest from the date of any such advance until
reimbursed at the rate charged by Citibank N.A., or its successor, to its most creditworthy
customers plus 2%. The paying party shall have the right to lien the other party's Tract for any
and all such advanced amounts. Any party may file suit, either before or after paying the amount
due from a non-paying party, to enforce this Agreement or to secure performance by a party of
its obligations hereunder.
ARTICLE 4
PARTICIPANT'S FINANCIAL ASSURANCE; COST OVERRUNS
Section 4.1 Escrow Account.
(a) To assure that sufficient funds shall be available from the
Participants to reimburse Developer for all amounts advanced by Developer on behalf of the
Participants under this Agreement, the Participants shall, not later than three (3) days from the
date hereof, using escrow agreement signed by the parties in the form attached hereto as Exhibit
"D" establish an escrow account (the "Lift Work Reimbursement Account") with Escrow
Services ("Escrow Holder"), and deposit therein cash in an amount equal to 115% of total of its
Pro Rata Share of the Construction Contract (the "Reimbursement Funds").
(b) Developer shall contemporaneously with its delivery to Escrow
Holder of the documents described in Section 2 of Exhibit G ("Reimbursement Request"),
deliver a copy of same to the Participants (for their approval) to evidence Developer's payment
of all sums paid for the Lift Work pursuant to Article 3 (including all sums advanced on behalf
of Developer pursuant to Section 3.2) and reflect the lien -free completion of the Lift Work
covered in each Application for Payment (as defined above). The Participants agree that they
will not unreasonably withhold, delay or condition its approval of each Reimbursement Request
nor the execution of any joint instruction which may be requested by Escrow Holder to
implement reimbursement to Developer for the amounts so advanced as contemplated by
Section 5.1 and Exhibit D attached hereto.
Section 4.2 Cost Overruns. The parties shall be responsible for any and all cost
overruns based upon their Pro Rata Share provided that the cost overruns relate to the project in
general and did not result from any changes or improvements that were made for the benefit of
less than all of the parties to this Agreement. Any cost or expenses that are incurred for the
benefit of less than all of the parties to this Agreement shall be the sole responsibility of the
party(ies) so benefited, and such party(ies) agree to indemnify and hold the non -benefited parties
harmless from all such cost and expense.
MH-Lift Development Agmt-12-1-05 -4-
ARTICLE 5
PARTICIPANTS' RIGHT TO PERFORM LIFT WORK
If Developer fails to perform or observe any of the covenants, conditions or provisions
set forth in this Agreement on its part to be performed and does not cure any monetary default
within fifteen (15) days of written notice from the Participants, or any non -monetary default
within thirty (30) days after written notice thereof from the Participants (or, if such non -
monetary default cannot be cured within thirty (30) days, does not commence to cure within such
thirty (30) days and thereafter diligently prosecute such cure to completion), the Participants
shall be entitled to all rights and remedies available at law or in equity. Without limiting the
foregoing, in the event Developer fails to perform any of its covenants herein regarding
performance of the Lift Work, then the Participants, after giving Developer written notice, may
perform any or all of said covenants, including the construction of the Lift Work. If the
Participants exercise their right to perform the Lift Work as provided in the preceding sentence,
Developer shall pay the Participants (A) for the actual out-of-pocket costs incurred by the
Participants and paid to third parties for such Lift Work (excluding, however, the Participants'
collective Pro Rata Share for the Lift Work), plus (B) reimbursement for administrative and
mobilization expenses not to exceed 10% of the Participants' cost of undertaking the Lift Work
pursuant to this Article, no later than thirty (30) days after receipt by Developer of appropriate
documentation reflecting the lien free completion of and payment for such Lift Work. If
Developer fails to pay the Participants as provided in the preceding sentence, Developer shall
pay the Participants all sums so advanced together with costs, reasonable attorneys' fees and
interest from the date of any such advance until reimbursed at the rate charged by Citibank N.A.,
or its successor, to its most, creditworthy customers plus 2%. Further the Participants shall have
the right to lien the Developer's Tract for any and all such advanced amounts. The Participants
acknowledge that the timely installation of trunk lines across each of their properties, the
development of which is not subject to this Agreement, is critical. Each Participant hereby
confirms its intent to install trunk lines across its property in a timely manner.
U M14aI ei
TRANSFER OF LIFT STATION
Upon completion of the Lift Work, Developer shall convey to the City of Kalispell and
the City of Kalispell shall accept and shall thereafter operate the sewer lift station. Additionally,
all water and sewer mains shall be transferred to the City of Kalispell, which shall thereafter be
solely responsible for the repair and maintenance of such mains. All parties hereto agree to
execute any and all documents reasonably required to accomplish such conveyance and transfer.
ARTICLE 7
MISCELLANEOUS
Section 7.1 Permitted Delays. The duties of Developer to observe or perform any of
its obligations under this Agreement shall be excused for a period equal to the period of
prevention, delay or stoppage due to causes beyond its control (other than financial reasons)
MH-Lift Development Agmt-12-1-05 -5- j
including, without limitation, by reason of strikes, civil riots, civil commotion, work stoppages
arising out of collective bargaining strikes, unavailability of materials, war, invasion, fire or
other casualty, extreme, excessive or abnormal weather conditions, or acts of God, provided that
Developer has taken steps that are reasonable under the circumstances to mitigate the effects of
such delay situation. The provisions of this Section shall not operate to excuse any party from
the prompt payment of any monies required by this Agreement.
Section 7.2 Notices. All notices, demands and requests required or permitted to be
given under this Agreement (collectively the "Notices") must be in writing and must be delivered
personally or by nationally recognized overnight courier or sent by United States certified mail,
return receipt requested, postage prepaid and addressed to the parties at their respective addresses
set forth below, and the same shall be effective upon receipt or refusal. The initial addresses of
the parties shall be:
To Developer: Kalispell Bowser Creek Associates, LLC
121 Spear Street, Suite 250
San Francisco, California 94105
Attention: Mr. Robert Isackson
With a copy to: Mary Haber, Esq.
Village Properties
121 Spear Street, Suite 250
San Francisco, California 94105
To Participants: Touchstone, LLC
1289 Meridian Road
Kalispell, MT 59901
Attn: Mr. David J. Walker
Northstar Associates, LLC
2239 Lower Valley Road
Kalispell, MT 59901
Attn: Mr. Tim Birk
520 Three Mile Drive Associates, LLC
121 Spear Street, Suite 250
San Francisco, CA 94105
Attn: Mr. Robert Isackson
City of Kalispell (City Manager)
P.O. Box 1997
Kalispell, MT 59901
Attn: Mr. James H. Patrick
Upon at least ten (10) days prior written notice, each party shall have the right to change
its address to any other address within the United States of America.
I.
MH-Lift Development Agmt-12-1-05 -6-
Informal communications made between the parties during the completion of
construction activities to be performed under this Agreement may be made by their respective
project managers as designated from time to time.
Section 7.3 Relationship of Parties. Nothing contained in this Agreement shall be
deemed or construed, either by the parties hereto or by any third party, to create the relationship
of principal and agent or to create any partnership, joint venture or other association between the
parties.
Section 7.4 Costs and Attorney 'sy Fees. If any party brings or commences any legal
action or proceeding to enforce any of the terms of this Agreement (or for damages by reason of
an alleged breach of this Agreement), the prevailing party in such action shall be entitled to
recovery of all costs and expenses of litigation, including reasonable attorney's fees.
Section 7.5 Exhibits. Each exhibit attached to and referred to in this Agreement is
hereby incorporated by reference as though set forth in full where referred to herein. The recitals
are incorporated herein by reference as matters of contract and not mere recital.
Section 7.6 Counterparts. This Agreement may be signed in counterparts, each of
which shall be deemed an original and all of which when taken together shall constitute one
instrument.
Section 7.7 Headings. Headings of sections are for convenience only and shall not be
considered in construing the meaning of the content or meaning of any section.
Section 7.8 Merger and Amendments. This Agreement constitutes the entire
agreement between the parties relating to the subject matter hereof and supersedes and cancels
all prior negotiations between the parties with respect to the construction work described herein,
and any changes, amendments and/or modifications hereto must be in writing and signed by the
party against whom enforcement is sought.
Section 7.9 No Waiver. The failure to enforce any particular provision of this
Agreement on any particular occasion shall not be deemed a waiver by any party of any of its
rights hereunder, nor shall it be deemed to be a waiver of subsequent or continuing breaches of
that provision, unless such waiver be expressed in a writing signed by the party to be bound,
which in the case of Developer must be an officer of at least vice president level.
Section 7.10 Computation of Days. Any time period of less than fourteen (14) days
shall in the computation thereof exclude Saturdays, Sundays and state or national holidays, and
any time period provided for herein which shall end on Saturday, Sunday or a legal holiday shall
extend to 6:00 p.m. Pacific time of the next business day.
Section 7.11 Construction of Document. Since the parties hereto have participated in
extensive negotiations in the drafting of the terms and provisions of this Agreement, the parties
agree that this Agreement shall be construed without regard to the identity of the person or party
who drafted the various provisions and any rule of construction that a document is to be
construed against the drafting party shall not be applicable.
MH-Lift Development Agmt-12-1-05 -7- l
Section 7.12 Not Binding Until Executed. This Agreement shall become a binding
obligation of the parties only upon the complete execution and unconditional delivery thereof by
all parties. All of the terms of this Agreement shall apply to, be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns and all other persons
claiming by, through or under them.
Section 7.13 Governing Law. This Agreement shall be governed by and construed,
interpreted and applied in accordance with the laws of the State of Montana.
Section 7.14 Severability. In the event any provision or portion of this Agreement is
held by any court of competent jurisdiction to be invalid or unenforceable, such holding will not
effect the remainder hereof, and the remaining provisions shall continue in full force and effect
to the same extent as would have been the case had such invalid or unenforceable provision or
portion never been a part hereof.
Section 7.15 Time. Time is of the essence in the performance of each and every
obligation contained herein.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives effective as of the day and year first above written.
Touchstone, LLC,
a NictJ*rw-N^" limited liability company
Its: M4.. r►u.*wJ
Northstar Associates, LLC,
a Montana limited > �ycliability company
,
Timothy Birk
Managing Member
Justin Dean
Managing Member
MH-Lift Development Agmt-12-1-05 -8-
520 Three Mile Drive Associates, LLC
a limited liability company
By:
Its:
CITY OF KALISPELL
By: = An., em —46Zt c.ul
Its: C-, Ty fft AAJAC-e- L
MH-Lift Development Agmt-12-1-05 -9- , J
EXHIBIT "A"
Legal Descriptions
MH-Lift Development Agmt-12-1-05
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No. CT-81771
The land referred to in this policy is
SCHEDULE C
In'the State of Montana, County of Flathead and is described as follows:
.A tract of land, situate lying and being in the N:_12 of Section 11, Township
28 North, Flange 22 West, I P.M.M., Flathead Cot,tnty, Montana and more
particularly described a follows:
Beginning at the CN1116 orner of said Section 11; thence
South 89'43'59" West, l3 3.25 feet to the NW1/16 c,:)rner of said Section ll;
thence
North 00'54'42" East, 1281..24 feet to the Northwest corner of Parcel A of
Certificate of Sury (C.O.S.) 4218, Flathead County Records, said point
lies are the South right of way of Farm to Market Road; thence the following
seven courses :re a Ong said South right of way:
North 89'56139" East, 2 7.84 feet;
South 00*03*21" East, 3 .30 feet;
North 89*56145" East 69 .80 feet;
North 00'03'54" Weat 9. 0 feet;
North 89'56'06" East, 5 9.50 feet;
North 00'51'15" East, 1 .0.6 feet;
North 89'57'48" East, 1 2'''26 feet to the Northwes':. corner of Parcel B of
C.O.S. 421.8; thence leaving said right of way,
South 00'01'01" East, 4 0.97 feet to the Southwest: corner of said Marcel B;
thence
North 89'54'45" East, 7 .74 feet along the South boundary of said Parcel. 3 to
the Northwest corne of Tract 1 of C.O.S. 159,11; thence
South, 842.68 feet to t e Southwest corner of said Tract 1, Said point lies on
the North boundary f Aspen Knoll. Subdivision, Phase 1, a map or plat on
file in the office f the Flathead County Clerk and Recorder; thence the
following two cours s are along the North bou::idary of said subdivision;
South 89*40,20" west, 1..28 feet;
South 89'40132" West, 81.32 feet to the Point at Beginning.
Tract 1, Certificate o4 Survey No. 16428
THE END
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EXHIBIT "B"
List of Plans and Specifications
for Lift Work
MH-Lift DevelopmentAgmt-12-1-05
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EXHIBIT licit
Construction Bid
MH-Lift Development Agmt-12-1-05
Lift Station Cost & Participation Breakdown
Revised 3-10-06
Lift Station Costs (per LHC Bid)
Bid Line Item #
11
20
21
31
TD&H redesign work
Total Cost
115% of total cost to be escrowed
Bid Item
Cost
Force Main
$15,988
Jack and Bore
$19,805
Lift Station
$176,235
Concrete Fillett
$510
Design Fees
$13,763
$226,301
Pro Rata Shares of Lift Station Development Costs
$260,246
Developer 9.81 % $25,530.18
Touchstone, LLC 17.67% $45,985.55
Northstar Associates 17.98% $46,792.31
520 Three Mile Drive Associates 6.71 % $17,462.54
City of Kalispell 47.83% $124,475.87
Total 100.00% $260,246
Revised Pro Rata Contributions with Cofferdam 3-10-06
Additional Cost of Cofferdam
Less 15% Contingency (included in 115% figure above)
Additional to be escrowed by partnership
Revised Pro Rata Shares of Lift Station Development Costs
Developer
9.81 %
Touchstone, LLC
17.67%
Northstar Associates
17.98%
520 Three Mile Drive Associates
6.71 %
City of Kalispell
47.83%
Total
100.00%
$51,456.80
$33,945.19
$17,511.61
$27,248.06
$49,079.85
$49,940.90
$18,637.57
$132,851.68
$277,758.05
Lift Station Cost & Participation Breakdown
Lift Station Costs (per LHC Bid)
Bid Line Item #
11
20
21
31
TD&N redesign work
Total Cost
115% of total cost to be escrowed
Bid Item
Cost
Force Main
$15,988
Jack and Bore
$19,805
Lift Station
$176,235
Concrete Fillett
$510
Design Fees
$13,763
$226,301
Pro Rata Shares of Lift Station Development Costs
$260,246
Developer
9.81%
$25,530.18
Touchstone, LLC
17.67%
$46,985.55
Northstar Associates
17.98%
$46,792.31
520 Three Mile Drive Associates
6.71 %
$17,462.54
City of Kalispell
47.83%
$124,475.87
Total
100.00%
$260,246
SEP-27-2005 TUE 02 : 44 PM LHC INC FAX N0, 406 758 6430 P.- 02
BID PROPOSAL
DONYSER CRCE ESTATES UTILITY AND ST12EET III1'1tOVE•IIZNTS
IS.UMFELL, NIOINT.: YA
ITE4't EST,
ti10. DESCF111TION'' QUANTITY L'NL rT FRICT: 11.10r.-NT
I - Earth-,
1. Site Earchv ork i LS S
Subtotal Schedula•T S S ;
Schedule I? - Wzter,
Sever & Storm Drainage Iinproveinents
2.
Imported Trench Sac`riil
100
C.Y.
S
- S
Water Main - C900 CL 1-50 PVC Pipe
a S"
�uvG
L•.
S
b..12"
17170
L.F.
4.
Ductile Iron .%fechani.a( Joint 1=irtin-gs
a. S"
25
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S
S
b.12"
20
Each
S
S
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a.
Gate Valve Vah•e Box
a. S"
12
Each
b. 12"
4
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S
6.
Water Service Connections
a.'/" OR 11 F'.DPE
6.1
Each
S
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_
-
b. 1'./z" DK 11 IIDPE
2
Each
S
$
2.
New Fire Hvdrant use a [,
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S-
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Connect to Existing 1 teia
Each
S
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L.F.
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SEP-27-2005 TUE 02:44 PM LHC INC FAX NO, 406 758 6430 P. 03
EST. °
DESCRIPTION
QUANTITY
UNIT PRICL•
AMOUNT
22... Class II RCPA w/FETS
-• a. 36"x58-I/2"
93 L.F.
S
S
b. 26-5/8"x43-3/4" . " '
190 L.F.
S
S - —
23. 1 S"-16 Gauge CD1P w/ (2) 8'RR.A.CETs
68 L.F.
S
Subtotal Schedule 1I
S
S "
* Quantities use estimates only. Final payment will be based on actual measured quantities per the specifications and plans
Schedule M — Roadway Improvements
24.
4" Asphaltic Concrete
8895
S.11'.
S
5
25.
i,4" Minus Gravel
741
C.Y.
26.
3" Minus Subbase
3547
C.Y.
$
$
27.
Curb and Gutter
7800
L.F.
$
28.
4". Concrete Walk with Base
23350
S.F.
$ �
$ — ,
29.
Concrete Valley Gutter
250
SY.
S -
$ �
30.
New Signs
6
Each
S
31.
Concrete Fillets
3
Each
S
32....
Bollard _.. _.
6 .
La-cl:
S
$ ---
33.
= Dead End Barricade
1
Each
S
$ .
34. -• .--Topsoil & Seeding. ___
..'. .._.__..,....___.. 1 ..
L.S.
$
35.
" Traffic Control =
1 .
L.S.
$
S —
36.
Mobilisation, Bonding and Submittals 1
L.S;
'-S
�aLkie-ZL
TOTAL ESTLAA.TED BID PRICE SCEMDME L U & M S
-_ _ - • -- ignres)
TOTAL ESTnLkTED BID PRICE S CgEDULE I. TI & ITI S
(Words)
Schedule IV—EIect.rical Work
Conduit, pull ropea, pull box-.,,!--*-, pole b2ses, trench exca%,adcn, etc. - specific requirements from udlin- cotnpan}'.
Quantities to be determined at s later date and bids submitted to 0,xner at a later date.
arorotz,.t.nac
I?.�OJp3
EXHIBIT "D"
ESCROW AGREEMENT
This escrow agreement (the "Agreement") is entered into by and between and
KALISPELL BOWSER CREEK ASSOCIATES, LLC ("Developer") and Touchstone, LLC,
Northstar Associates, LLC, 520 Three Mile Drive Associates, LLC and City of Kalispell
(collectively, the "Participants").
RECITALS:
A. Developer is the owner of that certain real property located in the City of
Kalispell, County of Flathead ("Developer's Tract") more specifically described in Exhibit A
attached hereto and incorporated herein by reference.
B. The Participants own land in the vicinity of the Developer's Tract as more
specifically described in Exhibit A (collectively, the "Participants' Tracts").
C. The Developer's Tract and the Participants' Tract are intended to be served by a
single sewage lift station.
D. The Developer has agreed to construct the sewage lift station and the Participants
have agreed to pay their proportionate share of the cost of such construction work, as more
particularly described in the Lift Development Agreement entered into between the Participants
and the Developer of date even herewith. Said work which the Participants have agreed to pay
for hereinafter referred to as the "Work."
E. The parties desire to enter into this Escrow Agreement to ensure the Participants
have funds available to pay for the Work.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. This Agreement shall be effective as of the date hereof (the "Effective Date").
2. Any capitalized terms used herein and not defined herein shall have the same
meaning as set forth in the Lift Development Agreement.
3. The total sum to be escrowed by the Participants is Two Hundred Forty Four
Thousand Four Hundred Nineteen and No/100 Dollars ($244,419.00) (the "Funds").
Each Participants' Pro Rata Share of the Funds is as follows:
(A) Developer's Pro Rata share shall be 9.81 %
(B) Touchstone, LLC's Pro Rata share shall be 17.67%;
(C) Northstar Associates, LLC Pro Rata share shall be 17.98;
MH-Lift Development Agmt-l2-t-05
A-4,
(D) 520 Three Mile Drive Associates, LLC's Pro Rata share shall be 6.71%;
(E) City of Kalispell's Pro Rata share shall be 47.83%.
4. The Funds are to be held in an interest bearing account in a federally insured financial
institution to ensure the payment for completion of the Work.
5. The Funds for the Work are to be held until Escrow Agent receives written
disbursement instructions from the Participants and Developer. The Participants and
Developer shall provide appropriate disbursement instructions to Escrow Agent when
one of the following events has occurred: (a) Developer has had all or a portion of
the Work performed on its behalf and provided the Participants with (i) a copy of an
application for payment from the General Contractor, and (ii) a cancelled check or
other written evidence of Developer advancing such separately allocated sum on
behalf of the Participants and the Participants have approved the foregoing; or (b) if
Developer fails to meet its obligations under the Lift Development Agreement and the
Participants have had the Work performed on their behalf and provided Developer
with (i) a copy of an application for payment from the General Contractor, and (ii) a
cancelled check or other written evidence of the Participants paying such separately
allocated sum on behalf of the Participants and Developer has approved the
foregoing. If the foregoing event (a) occurs, Developer and the Participants shall
instruct Escrow Agent that the Funds shall be released to Developer. If the foregoing
event (b) occurs, Developer and the Participants shall instruct Escrow Agent that the
Participants shall receive the Funds. To the extent any Funds remain after completion
of the Work, the Participants and Developer will direct Escrow Agent to release the
remaining Funds to the Participants based on their Pro Rata Share. Escrow Agent
will release Funds under this Paragraph 5 within five (5) days of receipt of joint
instructions for same. Any approvals required hereunder shall not be unreasonably
withheld and shall be granted or denied within five (5) days of request for same.
Requests for disbursement shall occur no more frequently than once a month.
Without otherwise modifying the foregoing, Escrow Agent is immediately authorized
to release the Preliminary Design Costs ($13,763.25) to Thomas Dean & Hoskins.
6. In the event a controversy arises over said Funds or Escrow Agent receives
conflicting instructions from Developer and the Participants regarding the Funds,
Escrow Agent may tender the Funds into District Court in the State of Montana,
County of Flathead for disposition, in which event Escrow Agent shall be entitled to
pay from the escrowed Funds reasonable attorney's fees to the attorney Escrow Agent
chooses to tender such Funds into the Court plus Court costs, and to deduct therefrom
all escrow fees which have accrued in relation to such Funds and tender the remaining
Funds to the Court.
7. The undersigned agree to save and hold harmless Escrow Agent from any liability
arising under and as a result of this Escrow Agreement.
8. The parties agree that time is of the essence of this Agreement.
MI -Lift Development Agmt-12-1-05 2
9.. In the event that any party hereto shall be delayed or hindered in or prevented form
the performance required hereunder by reason of strikes, lockouts, labor troubles,
failure of power, riots, insurrection, war, acts of God, or other reason of like nature
not the fault of the party delayed in performing Work or doing acts, other than
financial causes, such party shall be excused for the period of time equivalent to the
delay caused by such event. Notwithstanding the foregoing, any extension of time for
such delay shall be conditioned upon the party seeking an extension of time
delivering written notice of such delay to the other parties within ten (10) days of the
event causing the delay.
10. The foregoing terms constitute the entire agreement between the parties, and this
Agreement shall not be modified, changed or amended by any subsequent written or
oral agreement unless agreed to in writing by Escrow Agent. This Agreement shall
be governed in accordance with the laws of the State of Montana, excepting its choice
of law rules.
Touchstone, LLC,
a /''1'A-' limited liability company
By: --
Its: MO-u .1•
Northstar Associates, LLC,
a ntana 1' ed li i ' y pany
mothy Birk
Managing Member
Justin Dean
Managing Member
520 Three Mile Drive Associates, LLC
a
By:
Its:
limited liability company
MH-Lift Development Agmt-12-1-05 3
CITY OF KALISPELL
Its: C-t P-!r ry z ilk ns-A
MH-Lift Development Agmt-12-1-05
The undersigned acknowledges receipt of the above money in the amount of Two Hundred Forty
Four Thousand Four Hundred Nineteen and No/100 Dollars ($244,419.00) to be held in escrow
in accordance with the terms of the foregoing instrument. The Escrow Agent does not assume
and shall not be under liability on account of performance or non-performance of any party to the
Agreement; and the Escrow Agent may, at its option, require the receipt, release and
authorization in writing of all parties before paying money or delivering or redelivering
documents or property to any party or to third parties. Escrow Agent shall not be liable for any
interest or other charge on the money held by it.
By: —
Name:
Date:
MH-Lift Development Agmt-12-1-05 J