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HomeMy WebLinkAboutWarranty Deed 93- Burke, Edmund & Martha & Thomas Deed .. . , .N'. , , , ...~ t;. \. " . . . I ,. filM 135 PACf1594 WARRANTY DEED IN CONSIDERATION of the sum of Two Hundred Thirty-five Thousand Dollars ($235,000) receipt of which is hereby acknowledged on this 27th day of Auqust , 1993, the undersigned, Edmund Burke, Trustee of the Edmund Burke Revocable Trust dated March 2, 1981, and Martha Benge Burke, Trustee of the Martha B. Burke Revocable Trust dated March 2, 1981, and Thomas D. Burke, tenants in common, do hereby grant unto the City of Bozeman, a Montana municipal corporation, the following described real property situated in Gallatin County, Montana, to-wit: Tract 1 of Certificate of Survey No. 1778 located in the SW1ASE1A of Section 7 and the Ph of Section 18, Township 2 South, Range 6 East, P.M.M., Gallatin County, Montana, according to the official plat thereof on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana. EXCEPTING THEREFROM Lots 27, 28, 29, 30, 31 and the Slh of the vacated alley lying adjacent to the North of Lots 27, 28, 29, 30 and 31; and the NVz of vacated 15th Street Southeast lying adjacent to the South of Lots 27, 28, 29, 30, and 31; all located in Block 20 of the Electric Heights Addition to The City of Bozeman, Gallatin County, Montana. AND FURTHER EXCEPTING THEREFROM Lots 1, 2, 3, 4, 5, 6; the Slh of vacated 15th Street Southeast lying adjacent to the North of Lots 1, 2, 3, 4, 5, and 6; and the Nlh of the vacated alley lying adjacent to the South of Lots 1, 2, 3, 4, 5 and 6. Lots 34, 35, 36, 37, 38, 39; the Sth of the vacated alley lying adjacent to the North of Lots 34, 35, 36, 37, 38 and 39; and the Nlh of vacated 16th Street Southeast lying adjacent to the South of Lots 34,35, 36, 37, 38 and 39. All located in Block 21 of The Electric Heights Addition to The City of Bozeman, Gallatin County, Montana. TO HA VE AND TO HOLD unto the Grantee and to its successors and assigns forever, subject, however, to: WarraJIty Deed.Burke Page 1 , I , . . . . , .. ,,;.~. lii.. \. '. , , . .. filM 135 PACE 1595 (a) All reservations, easements, rights-of-way and restrictions of record pertaining to said lands or any thereof; (b) all existing building and use restrictions and zoning ordinances pertaining to said property ; (c) all taxes and assessments for the year 1993 and subsequent years. EXCEPT with reference to items referred to in paragraphs (a) through (c) above, the Deed is given with the usual covenants expressed in MCA Sections 30-11-109 and 30-11-110. IN WITNESS WHEREOF, the Grantors have executed this Warranty Deed the day and year first above written. EDMUND BURKE REVOCABLE TRUST Dated March 2, 1981 By c,LJ ~ Edmund Burke, rustee - MARTHA BENGE BURKE REVOCABLE TRUSTEE Dated March 2, 1981 By'7?7.~~h ./ Martha Benge Burke, Trust THOMAS D. BURKE ~J)~ Thomas D. Burke r- STATE OF HAWAII ) : ss. CITY AND COUNTY OF HONOLULU ) On this 27th day of August in the year 1993 , before me a Notary Public for the State of Hawaii , personally appeared Edmund Burke, known to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that Wa"anly Deed.Burke Page 2 I . , . , " ,.- . , . . . . . - . ~ FIlM 135PACf1596 he executed the same. ! ~' 4/15/96 STATE OF HAWAII ) : ss. CITY AND COUNTY OF HONOLULU ) On this ...22th. day of .lI.llg:I1!':lt- in the year ---.l.m, before me a Notary Public for the State of Hawaii , personally appeared Martha Benge Burke, known to me to be the persou whose namlSCribed to the within instrument, and acknowledged to me that she executed the same. ~"" ~ . - . ",/.- .'- BLIC FOR THE STATE OF HAWAII Resid' Honolulu, Hawaii My CO.iP.t;l expires 4/15/96 ,'"/" , .1' "'.. ,..I?1"", . .,r. . ~. "'~.,fli':, .t'~~S~ Sl;~~~.t~~ . ~ ,... ~"1 ..~."...... .. .....'., g~'r;~~A" ~ '~",:; .r.,.,/.<'..'"' . .:'{" '~':r~ ~.' -oft.' ,,J- *'~'.l. . "]:1< . .... C,. -,', - : ,~,~. ,. ..lTBL \. .:.;f,f! ~~' ~ ,.y..'" "".. #.'/,,' .. j,,: :'. :, ~. .... ".,~"" .. . ~ ,,' .",; .". ... .....,' ~.....~ :- "',.4'): "......... " ;, 'if *' '",i .", ,." .', I'E'Of .""" '"..........,....', ' STATE OF HAWAII ) : ss. CITY AND COUNTY OF HONOLULU ) On this 27th day of August in the year 1993, before me a Notary Public for the State of Hawaii , personally appeared Thomas D. Burke, known to me Warranty Deed.Burke Page 3 . . . . " ) " " . .. . , . "- FILM 135PACf1597 to be the person whose name is subs ribed to the within instrument, and acknowledged to me that he executed the same. ~~,'J""~"'.'-"'''''-~~-- ~..... ~ .~- -l.. /' TARY,BUC FOR THE STATE OF HAWAII ~~r" ..;If'i~lu1u, Hawaii $'~~;~ti";; :...:e~~ires. 4/15/96 '" V '.I~:~:;"/i#' .~ \\,; ~~/~\~ .S., ,.:.;: \1 ' ..",,','~, ,..:.,' J~,:I" - " ~ ~ A.~. ... ..'....(),.~",.. .,..,., :'.~;,t..I;\,'f; 1.!k,..P,U'"'BL1.,..4,<:~;' ijf!"; ~'r...~",t1.,:" ""'. ";.....\i,~.,\~,., /1/';"\ ':o;.ri;:;:~~,;.r//;~"~~~I ~..... ! ., 'II ~'''.''''~''~\..,>~." ~ ~ " , ."'" tF "f ".", f.,. r'(,,~, I..... 270fl59 State of Mont., County of Gallatin. ss Flied for record SEPTEMBER 1 ,19-li at 10 : 1 7 A M., and recorded in Book 135 of DEEDS _page1594 ~ Allier .. a., Recorder. By~J.Jl #._<~ Deputy RT: PAUL J. LUWE, CITY ATTORNEY CITY OF BOZEMAN P.O. BOX 640 BOZEMAN, MONTANA 59771-0640 FEE: $24.00 Warranty Deed.Burke Page 4 --------- ---- , . ; ... ' . ... I . , . . , ~,-,-. - .\ 1'''';' . ~~:. .' . 1- , -, . --- _.--~--,- ., _n. 0 fA .f , ... '-. .. N' . . " POST OFFICE BOX 396 · 1800 WEST KOCH · BOZEMAN, MONTANA 59771-0396 WESTBROOK CENTER PHONE (406) 587-5563 or 586.3112 FAX (406) 587-8038 Commitment for Title Insurance DATE: August 19, 1993 ORDER NO. 1-45127 (City of Bozeman) PREPARED FOR: CITY OF BOZEMAN P. O. BOX 640 BOZEMAN, MT 59715 ATTN: PAUL LUWE, CITY ATTORNEY cc: THOMAS, DEAN AND HOSKINS ATTN: DAVE CRAWFORD cc: ALTC ESCROW DEPARTMENT . .~ " , '" -''''''-.f''' .' '. " . '. . . , .. . .' COMMITMENT FOR TITLE INSURANCE File No.: 1-45127 SCHEDULE A 1. Effective Date: August 5, 1993 at 8:00 A.M, 2. Policy or Policies to be issued: A. XX ALTA Owner's Policy: 10-17-92 XX Standard Coverage ~ Extended Coverage Amount: $235,000.00 Premium: $894.00 Proposed Insured: City of Bozeman B. ~ ALTA Loan Policy ~ Standard Coverage ~ Extended Coverage Amount: Premium: Proposed Insured: C. Amount: Premium: 3. The estate or interest in the land described or referred to in this Commitment and covered herein is: fee simple 4. Title to the said estate or interest in said land is at the effective date hereof vested in: Thomas 0, Burke, an undivided 1Iz interest; and Edmund Burke, Trustee of The Edmund Burke Revocable Trust dated March 2, 1981, and Martha Benge Burke, Trustee of The Martha B, Burke Revocable Trust dated March 2, 1981, an undivided 1Iz interest 5. The land referred to in this Commitment is described as follows: Tract 1 of Certificate of Survey No. 1778 located in the SW~SE~ of Section 7 and the E% of Section 18, Township 2 Southl Range 6 East, P.M.M., Gallatin County, Montana, according to the official plat thereof on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana. EXCEPTING THEREFROM Lots 27, 28, 29, 30, 31 and the S% of the vacated alley lying adjacent to the North of Lots 27, 28, 29, 30 and 31; and the N % of vacated 15th (continued) , " ,. ..i ." -,'....... , " " ' I". J. Ii. ... .' CONTINUATION SHEET SCHEDULE A File No.: 1-45127 Street Southeast lying adjacent to the South of Lots 27. 28, 29. 30, and 31; all located in Block 20 of the Electric Heights Addition to The City of Bozeman, Gallatin County, Montana. AND FURTHER EXCEPTING THEREFROM Lots 1, 2, 3, 4. 5. 6; the S % of vacated 15th Street Southeast lying adjacent to the North of Lots 1, 2. 3, 4, 5, and 6; and the N % of the vacated alley lying adjacent to the South of Lots 1, 2, 3, 4, 5 and 6, Lots 34, 35, 36. 37. 38. 39; the S% of the vacated alley lying adjacent to the North of Lots 34. 35, 36, 37, 38 and 39; and the N Y2 of vacated 16th Street Southeast lying adjacent to the South of Lots 34. 35, 36. 37, 38, and 39. All located in Block 21 of The Electric Heights Addition to The City of Bozeman, Gallatin County. Montana. All of the above vacated alleys and streets being vacated by City Ordinance No. 169, page 454. dated August 4, 1898 and also recorded September 21. 1898 in Book 7 of Miscellaneous. page 80. . " . . .J. ill, ->~... .. ~, ;". L 'f _.\ I .' SCHEDULE B - SECTION 1 File No.: 1-45127 Page: 2 Schedule B of the policy or pOlicies to be issued will contain exceptions to the following matters unless the same are disposed of to the satisfaction of the Company. A. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appear- ing in the public records, or attaching subsequent to the effective date hereof but prior to the date the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment, B. GENERAL EXCEPTIONS: 1. Rights or claims of parties in possession not shown by the public records. * 2. Encroachments, overlaps. boundary line disputes, and any other matters which would be disclosed by an accurate survey and inspection of the premises including, but not limited to. insufficient or impaired access and matters contradictory to any survey plat shown by the public records. * 3. Easements, or claims of easements. not shown by the public records. * 4. Any lien, or right to a lien, for services. labor, or material heretofore or hereafter furnished, imposed by law and not shown by the public records. * 5. (a) Unpatented mining claims: (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water. whether or not the matters excepted under (a), (b), or (c) are shown by the public records. * 6. Taxes or special assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. Proceedings by a public agency which may result in taxes or assessments, or notices or such proceedings, whether or not shown by the records of such agency or by the public records. * *Paragraphs 1,2,3,4.5, and 6 will not appear as printed exceptions on extended coverage policies. except as to such parts thereof which may be typed as a Special Exception in Schedule B-Section 2. C. SPECIAL EXCEPTIONS: (See Schedule B-Section 2 beginning on next page) . .. '. . ... ~.....+... " .' ,,~ , ~, '. . , . " SCHEDULE B - SECTION 2 File No.: 1-45127 SPECIAL EXCEPTIONS: 1, Except all minerals in or under said land including, but not limited to, metals, oil, gas, coal, stone and mineral rights, mining rights and easement rights or other matters relating thereto, whether expressed or implied. 2, Taxes for the year 1993 and subsequent years. Taxes for the year 1992 are paid. Taxes for the year 1993 are a lien, not yet due or payable. Included within the General Taxes is Bozeman Planning Board. (Taxes for the year 1992--first half - $555.55, second half - $550.27. Parcel No, RGH 1827,) [Includes this and other property] 3. Special assessments levied by the City of Bozeman for the year 1993 and subsequent years. No liability is assumed for any special assessments or snow removal assessments not set forth in the Assessment Books of the City of Bozeman. [NOTE: As of the effective date of this Commitment, we find no special improvement districts due on this property,] 4, Rights of way for, or any portion falling within creeks running across the above described property, including but not limited to Bozeman Creek, as disclosed by the Gallatin County Plat Maps. 5. Right.of-Way to The Mountain States Telephone and Telegraph Company recorded January 19, 1939 in Book 12 of Miscellaneous, page 6, records of Gallatin County, Montana. [Affects Blocks 1 through 21] 6. Right-of-Way Easement to The Mountain States Telephone and Telegraph Company recorded May 14, 1982 in Film 69, page 1740, records of Gallatin County, Montana. [Affects portions of Block 2 and Block 3] 7, Right-of-Way Grant to The Ohio Oil Company recorded May 2, 1931 in Book 11 of Miscellaneous, page 149, records of Gallatin County, Montana. 8. Right-of-Way Easement to The Montana Power Company recorded October 9, 1939 in Book 83 of Deeds, page 92, records of Gallatin County, Montana. [Affects portion of Block 21] 9. Grant of Easement to Madison River Power Company recorded November 11, 1 908 in Book 40 of Deeds, page 69, records of Gallatin County, Montana. [Affects portion of NE %. 18 and portion of SE %. 7-2S-6E] 10. Right.of-Way Easement to The Montana Power Company recorded December 7, 1939 in Book 83 of Deeds, page 239, records of Gallatin County, Montana. [Affects portion of NW%.NE%. 18-2S-6E] 11 . Rights-of-Way for, or any portion falling within ditches, canals, flumes, aqueducts and other neoessary apparatus as disclosed by Deed between Jeremiah R. Stone and Mary Stone and The Bozeman Power Company dated August 1, 1887 and reoorded August 3, 1887 in Book 15 of Deeds, page 279. [Affects portion of W%E% 18-2S-6E] (continued) This Commitment is not valid without Schedule B . Section 1 SCHEDULE B - SECTION 2 Commitment ... .. " ~ '" -~:'--~,,. / r ". '. . . .' " , " , " , CONTINUATION SHEET SCHEDULE B File No.: 1-45127 12. Right-of-Way Easement to The Montana Power Company recorded June 8, 1940 in Book 83 of Deeds, page 613, records of Gallatin County, Montana. [Affects portion of W%NE~ 18-2S-6El 13. Right-of-Way Easement to The Mountain States Telephone and Telegraph Company recorded May 14, 1982 in Film 69, page 1737, records of Gallatin County, Montana, [Affects portion of N % 18-2S-6El 14. Easement and Right-of-Way Agreement between Edmund Burke III and Thomas D. Burke and The City of Bozeman recorded May 4, 1983 in Film 76. page 85, records of Gallatin County, Montana. [Affects portion of NE ~ 18-2S-6El 15. Right-of-Way Easement to The Mountain States Telephone and Telegraph Company recorded May 14, 1982 in Film 69, page 1739, records of Gallatin County, Montana. [Affects portion of SE~ 7-2S-6El 16. The effect of a Note on the recorded plat as follows: "The ties from Electric Heights to the Vernon-Spangelo and Combs tracts given in the Peets to Burke Deed do not correspond to the location of these tracts as found marked on the ground. The Burke line is based on the location of the found monuments." 1 7. The effect of Pipe Line Right-of-Way as disclosed by Warranty Deed between Adolph Peterson and Florence T. Peterson, as Grantors and Reider S. Peterson and Nancy E, Peterson, as Grantees, dated July 9, 1976 and recorded July 14, 1976 in Film 33, page 1555, as follows: "Also including a right-of-way for a single pipe line over and across Blocks Six (6) and Lots Thirteen (13) to Fifteen (15) inclusive, Block Eight (8); Blocks Nine (9) and Ten (10); also over and across the vacated streets and alleys adjacent to said Blocks, All being in Electric Heights Addition to The City of Bozeman." 18. Any invalidity or defect in the title of the vestees in the event that the trust referred to in the vesting portion of Schedule A is invalid or fails to grant sufficient powers to the trustee(s) or in the event there is a lack of compliance with the terms and provisions of the trust instrument. NOTE: If title is to be insured in the trustee(s) of a trust, (or if their act is to be insured), this Company will require a copy of the trust instrument creating such trust, and all amendments thereto, together with a written verification by all present trustees that the copy is the true and correct copy of the trust, as it may have been amended, that it is in full force and effect and that it has not been revoked or terminated. SL/45100 GLM This Commitment is not valid without Schedule B - Section 1 SCHEDULE B - SECTION 2 Commitment ~ "..;e I - , , _ L ,,~ ~ ' .. ,'" --' . J j.".." . BARGAIN SALE AGREEMENT This Agreement ("Agreement" ) entered into this 6th day of August , 1993, between EDMUND BURKE, TRUSTEE OF THE EDMUND BURKE REVOCABLE TRUST DATED MARCH 2, 1981, and MARTHA BENGE BURKE, TRUSTEE OF THE MARTHA B. BURKE REVOCABLE TRUST DATED MARCH 2, 1981, and THOMAS D. BURKE, Tenants in Common, ("'Seller") and THE CITY OF BOZEMAN, MONTANA, a municipal corporation ("Buyer"). l. Seller is the owner of certain real property in Bozeman, Montana, described in Exhibit "A" attached hereto and incorporated herein by this reference. Said real property, together with any and all improvements, fixtures, timber, water and minerals located thereon and any and all rights appurtenant thereto including but not limited to timber rights, water rights, grazing rights, access rights and mineral rights, except for the retained parcel described in Exihibit "B" attached hereto, shall be referred to in this Agreement as the "Subject Property". 2 . It is the mutual intention of Seller and Buyer that the Subject Property be preserved and used for public park and recreational purposes. Buyer is prepared to condemn Seller's property for such park purposes. This Agreement is entered into under threat of condemnation. 3 . In consideration of the payment of Two Hundred Thirty-five Thousand and no/lQO Dollars ($235,000,00) by Buyer, . . T . ,1,- .. , - ., " " A _, . . ., Seller agrees to convey Subject property to Buyer. As a further material condition of this Agreement, Subject Property will be named "BURKE PARK". The purchase price will be due and payable immediately upon the conveyance of Subject Property from Seller to Buyer by warranty deed accompanied by a title report evidencing good title in Seller and an ALTA extended coverage owner's policy of title insurance in the amount of the purchase price insuring title in Buyer. The parties mayor may not utilize escrow services in this transaction. It is contemplated that such conveyance will take place prior to August 7, 1993. 4. RETAINED PROPERTY. The parties agree that Seller will retain a parcel comprising approximately 2 acres described in Exhibit "B" attached hereto and incorporated by reference. The parties have agreed that the value of the retained parcel is $25,000.00. As further consideration for the sale of SUbject Property, the parties agree as follows: a. Seller contemplates subdividing the current platted lots into two lots, hereinafter referred to as "retained lots., and building a one-story single-family home on each retained lot. Buyer agrees with this proposed concept for the retained property subject to Seller's compliance with State law, City regulations and City code provisions, and required procedural reviews and approvals. -2- 1 .. I , ~ *~& . ~~ ~ " " .- , b. Buyer, in reviewing adjacent subdivisions to the retained lots, will ensure in its review of the adjacent subdivisions that the streets are arranged to allow for street and utility access to the retained lots in order to avoid land-locking the retained lots. Seller agrees to pay a fair share of any street extension proportionately with other owners directly benefitted from the street extension. Buyer will ensure that Seller has street and utility access to the retained lots whether or not the adjacent property is ever subdivided which is currently satisfied by Ida Street. If the portion of Ida Street on the retained property should ever be vacated, the half of the Street to the center line nearest Seller's retained property shall revert to Seller. c. When City street and utilities become available to the retained lots, Buyer will issue a building permit for each of the retained lots as long as all City regulations and code provisions are satisfied. d. Buyer will lease back the two retained lots from Seller for park use at an annual lease rent equal to the property taxes for the two retained lots. The term of the lease will be limited to a term of twenty (20) years unless the City renews the lease at the end -3- - ~ I , , ~'" ... ..,.' ~ '. .' . . . . of the twenty-year term, or until the lease terminates at an earlier date due to building permits being issued for the single family homes. DATED: This ~ day of August , 1993. SELLER: BUYER: uU,~_ CITY OF BOZEMAN, MONTANA, a municipal corporation, ByQ?~~~ EDMUND BURKE, Trustee of the EDMUND BURKE REVOCABLE TRUST DATED MARCH 2, 1981 ;n,cl~.) h~adL/ ATTEST: MARTHA BENGE RKE, Trustee ~J~ of the MARTHA B. BURKE REVOCABLE TRUST DATED MARCH 2, 1981 Ro l.n L. Sul-H vaft.:..- .. Clerk of CommtssiQn=---- -' -. .'- ... ~J).~ -<::-... .- THOMAS D. BURKE -4- 1 , .. . iil'\ ' . '.. .. , . . , ,f . EXHIBIT A SUBJECT PROPERTY The seller is owner of real property described as Tract 1 in Certificate of Survey Number 1778, of record in Gallatin County Courthouse, Bozeman, Montana. . . I , ~ ~ ~~ , '. , ' ~ . . . , i EXHIBIT B RETAINED PROPERTY The retained property comprises approximately one and three- quarter acres, and consists of Lots 27, 28, 29, 30 and 31 of Block 20; Lots 1, 2, 3, 4, 5, 6, 34, 35, 36, 37, 38 and 39 of Block 21 and the immediately adjoining vacated streets and alleys of the Electric Heights Addition to the city of Bozeman, and described in certificate of Survey Number 1778, of record in Gallatin County Courthouse. The vacated streets include 16th street Southeast, and 15th Street Southeast and the vacated alleys include the alley in Block 21 and the alley in Block 20 of said addition. A tract of land located in the Electric Height Addition to the city of Bozeman, described as follows: Beginning at the southeast corner of Block 21 of the Electric Heights Addition to the City of Bozeman; thence North along the west property line of 4th Avenue Southeast to the center line of the alley in Block 20 of said addition; thence west along said centerline to a point which is the extension of the west property line of Lot 27, Block 20, of said addition; thence south along the west property line of Lot 27, Block 20, Lots 6 and 34 of Block 21, and the extension of Lot 34, Block 21 of said addition to the centerline of 16th Street Southeast; thence east along the centerline of 16th Street Southeast to the west property line of 4th Avenue Southeast extended; thence north along the extension of the west property line of 4th Avenue Southeast to the point of beginning. Said parcel contains approximately one and three- quarter acres. ~ ~ , 'i- ) ;. ,. .-"f~ J~. ". . , " . , .l. , .r , , " , Commitment For Title Insurance Commonwealth Land Title Insurance Company, a Pennsylvania corporation, herein called the company, for a valuable con- sideration, hereby commits to issue its policy or policies of title insurance, as identified in Schedule A, in favor of the proposed Insured named in Schedule A, as owner or mortgagee of the estate or interest covered hereby in the land described or referred to in Schedule A, upon payment of the premiums and charges therefor; all subject to the provisions of Schedules A and Band to the Conditions and Stipulations hereof. This Commitment shall be effective only when the identity of the proposed Insured and the amount of the policy or policies committed for have been inserted in Schedule A hereof by the Company, either at the time of the issuance of this Commitment or by subsequent endorsement. This Commitment is preliminary to the issuance of such policy or policies of title insurance and all liability and obligations hereunder shall cease and terminate 120 days after the effective date hereof or when the policy or policies committed for shall be issued, whichever first occurs, provided that the failure to issue such policy or policies is not the fault of the company. IN WITNESS WHEREOF, the said Company has caused its Corporate Name and Seal to be hereunto affixed; this instrument, including Commitment, Conditions and Stipulations attached, to become valid when countersigned by an Authorized Officer or Agent of the Company. COMMONWEALTH LAND TITLE INSURANCE COMPANY Atren'r! fJ i~~t By ~ ~ Pre_D' Conditions and Stipulations 1. The term mortgage, when used herein, shall include deed of trust, trust deed, or other security instrument. 2. If the proposed Insured has or acquires actual knowledge of any defect, lien, encumbrance, adverse claim or other matter affecting the estate or interest or mortgage thereon covered by this Commitment other than those shown in Schedule B hereof, and shall fail to disclose such knowledge to the Company in writing, the Company shall be relieved from liability for any loss or damage resulting from any act of reliance hereon to the extent the Company is prejudiced by failure to so disclose such knowledge. If the proposed Insured shall disclose such knowledge to the Company, or if the Company otherwise acquires actual knowledge of any such defect, lien, encumbrance, adverse claim or other matter, the Company at its option may amend Schedule B of this Commitment accordingly, but such amendment shall not relieve the Company from liability previously incurred pursuant to paragraph 3 of these Conditions and Stipulations. 3. Liability of the Company under this Commitment shall be only to the named proposed Insured and such parties included under the definition of Insured in the form of policy or policies committed for and only for actual loss incurred in reliance hereon in undertaking in good faith (a) to comply with the requirements hereof, or (b) to eliminate exceptions shown in Schedule B, or (c) to acquire or create the estate or interest or mortgage thereon covered by this Commitment. In no event shall such liability exceed the amount stated in Schedule A for the policy or policies committed for and such liability is subject to the insuring provisions, the Conditions and Stipulations, and the Exclusions from Coverage of the form of policy or policies committed for in favor of the proposed Insured which are hereby incorporated by reference and are made a part of this Commitment except as expressly modified herein. 4. Any action or actions or rights of action that the proposed Insured may have or may bring against the Company arising out of the status of the title to the estate or interest or the status of the mortgage thereon covered by this Commitment must be based on and are subject to the provisions of this Commitment. PA3 American Land Title Association Commitment - 1966 Cover Page Form 1004-8 ORIGINAL ... . . -. .;, . , ISSUED BY ~ Commonwealth. POLICY NUMBER Land Title Insurance Company 201-02b132 OWNER'S POLICY OF TITLE INSURANCE SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE BAND THE CONDITIONS AND STIPULATIONS, COMMONWEALTH LAND TITLE INSURANCE COMPANY, a Pennsylvania corporation, herein called the Company, insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the Amount of Insurance stated in Schedule A, sustained or incurred by the insured by reason of: I. Title to the estate or interest described in Schedule A being vested other than as stated therein; 2. Any defect in or lien or encumbrance on the title: 3. Unmarketability of the title; 4. Lack of a right of access to and from the land. The Company will also pay the costs, attorneys' fees and expenses incurred in defense of the title, as insured, but only to the extent provided in the Conditions and Stipulations. IN WITNESS WHEREOF, COMMONWEAI.TH LAND TITLE INSURANCF COMPANY has caused its corporate name and seal to be hereunto affixed by its duly authorized officers, the Policy to become valid when countersigned hy an authorized officer or agent of the Company. COMMONWEAI"TH I,AND TITI,E INSURANCE COMPANY Attest: ~JfJ7:~ BY~~ President EXCLUSIONS FROM COVERAGE The following matters are expressly exclnded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: I. (a) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location of any improve- ment now or hereafter erected on the land; (iii) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or (iv) environmental protection, or the affect of any violation of these laws, ordinances or governmental regula- tions, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbranec resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. (b) Any governmental police power not excluded hy (a) ahove, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or allcged violation affecting the land has hcen recorded in the public records at Date of Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in thc puhlic records at Date of Policy, but nOI excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Defects, liens, encumbrances, adverse claims or other matters: (a) created, suffered, assumed or agreed to by the insured claimant: (b) not known to the Company, not recorded in the public records at Date of Policy, bUI known to the insured claimant and not discloscd in writing to the Company by the insured claimant prior to the date thc insured claimant hecame an insured under this policy; (c) resulting in no loss or damage to the insured claimant: (d) attaching or created subsequent to Date of Policy; or (c) resulting in loss or damage which would not have been sustained if thc insurcd claimant had paid value for Ihe est ale or interest insurcd by this policy. 4. Any claim, which arises out of the transaction vesting in the Insured the estate or interest insured by this policy, hy reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that is based on: (a) the transaction creating the estate or interest insured by this policy being decmed a fraudulcnt conveyance or fraudulent transfer; or (b) the transaction creating the estate or interest insured by this policy being deemed a prefercntial transfer except where the preferential transfer results from the failure: (i) to timely record the instrument of transfer: or (ii) of such recordation to impart notice to a purchascr for valuc or a judgment or lien creditor. NM 1 PA1Q ALTA Owner's Policy (10.17-92) Valid Only If Schedules A and B and Cover Arc Attached Form 1190-2 Face Page ORIGINAL .. . . > < "-, '. " j -\. , , . . .,;. .' OWNERS SCHEDULE A Office File Number Policy Number Date of Policy Amount of Insurance Premium September 1, 1993 1-45127 207-026132 at 10:17 A.M. $235,000.00 $894.00 1. Name of Insured: THE CITY OF BOZEMAN 2. The estate or interest in the land which is covered by this policy is: fee simple 3, Title to the estate or interest in the land is vested in: The City of Bozeman, a Montana Municipal Corporation 4. The land referred to in this policy is described as follows: Tract 1 of Certificate of Survey No, 1778 located in the SW~SE~ of Section 7 and the E Y2 of Section 18, Township 2 South, Range 6 East, P,M,M" Gallatin County, Montana, according to the official plat thereof on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana, EXCEPTING THEREFROM Lots 27, 28, 29, 30, 31 and the SYZ of the vacated alley lying adjacent to the North of Lots 27, 28, 29, 30 and 31; and the N Yz of vacated 15th Street Southeast lying adjacent to the South of Lots 27, 28, 29, 30, and 31; all located in Block 20 of the Electric Heights Addition to The City of Bozeman, Gallatin County, Montana. AND FURTHER EXCEPTING THEREFROM Lots 1, 2, 3, 4, 5, 6; the S Yz of vacated 15th Street Southeast lying adjacent to the North of Lots 1, 2, 3, 4, 5, and 6; and the N Yz of the vacated alley lying adjacent to the South of Lots 1, 2, 3, 4, 5 and 6. Lots 34, 35, 36, 37, 38, 39; the SYz of the vacated alley lying adjacent to the North of Lots 34, 35, 36, 37, 38 and 39; and the N Yz of vacated 16th Street Southeast lying adjacent to the South of Lots 34, 35, 36, 37, 38, and 39, All located in Block 21 of The Electric Heights Addition to The City of Bozeman, Gallatin County, Montana, All of the above vacated alleys and streets being vacated by City Ordinance No. 169 I page 454, dated August 4, 1898 and also recorded September 21, 1898 in Book 7 of Miscellaneous, page 80, .'\~~' , . . . . . , ., - " '. .. .. . . , .. .. EXCEPTIONS FROM COVERAGE File No.: 1-45127 Policy No.: 207-026132 SCHEDULE B This policy does not insure against loss or damage (and the Company will not pay costs, attor- neys I fees or expenses) which arise by reason of: GENERAL EXCEPTIONS: 1. Rights or claims of parties in possession not shown by the pUblic records. 2. Encroachments, overlaps. boundary line disputes. and any other matters which would be disclosed by an accu~ rate survey and inspection of the premises including, but not limited to, insufficient or impaired access and mat- ters contradictory to any survey plat shown by the public records. 3. EasementSI or claims of easements. not shown by the public records. 4. Any lien. or right to lien. for services. labor. or material heretofore or hereafter furnished. imposed by law and not shown by the public records. 5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance here- of; (c) water rights. claims or title to water. whether or not the matters excepted under (a). (b). or (c) are shown by the public records. 6. Taxes or special assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments, or notices of such proceedings. whether or not shown by the records of such agency or by the publiC records. SPECIAL EXCEPTIONS: 1. Except all minerals in or under said land including, but not limited to, metals, oil I gas, coal, stone and mineral rights, mining rights and easement rights or other matters relating thereto, whether expressed or implied. 2. Taxes for the year 1993 and subsequent years. Taxes for the year 1992 are paid. Taxes for the year 1993 are a lien, not yet due or payable. Included within the General Taxes is Bozeman Planning Board. [Includes this and other property] 3. Special assessments levied by the City of Bozeman for the year 1993 and subsequent years. No liability is assumed for any special assessments or snow removal assessments not set forth in the Assessment Books of the City of Bozeman. [NOTE: As of the effective date of this Policy, we find no special improvement districts due on this property.] 4. Rights of way for, or any portion falling within creeks running across the above described property, including but not limited to Bozeman Creek, as disclosed by the Gallatin County Plat Maps, 5, Right.of-Way to The Mountain States Telephone and Telegraph Company recorded January 19, 1939 in Book 12 of Miscellaneous, page 6, records of Gallatin County, Montana. [Affects Blocks 1 through 21] 6. Right-of-Way Easement to The Mountain States Telephone and Telegraph Company recorded May 14, 1982 in Film 69, page 1740, records of Gallatin County, Montana. [Affects portions of Block 2 and Block 3] 7, Right-of-Way Grant to The Ohio Oil Company recorded May 2, 1931 in Book 1 1 of Miscellaneous, page 149, records of Gallatin County, Montana. (continued) , . . - ; . . - .- - .\1iir . " '. -, , .. , . . CONTINUATION SHEET SCHEDULE B File Number: 1-45127 Policy Number: 207-026132 8. Right-of-Way Easement to The Montana Power Company recorded October 9, 1939 in Book 83 of Deeds, page 92, records of Gallatin County, Montana, [Affects portion of Block 211 9. Grant of Easement to Madison River Power Company recorded November 11, 1908 in Book 40 of Deeds, page 69, records of Gallatin County, Montana. [Affects portion of NE% 18 and portion of SE% 7-2S-6El 10. Right-of-Way Easement to The Montana Power Company recorded December 71 1939 in Book 83 of Deeds, page 239, records of Gallatin County, Montana. [Affects portion of NW%NE% 18-2S-6El 11 ,Rights-of-Way for, or any portion falling within ditches, canals, flumes, aqueducts and other necessary apparatus as disclosed by Deed between Jeremiah R. Stone and Mary Stone and The Bozeman Power Company dated August 1, 1887 and recorded August 3, 1887 in Book 15 of Deeds, page 279. [Affects portion of W% E % 18-2S-6El 12. Right-of-Way Easement to The Montana Power Company recorded June 8, 1940 in Book 83 of Deeds, page 613, records of Gallatin County, Montana. [Affects portion of W Y2 NE % 18-2S-6El 13, Right-of-Way Easement to The Mountain States Telephone and Telegraph Company recorded May 14, 1982 in Film 69, page 1737, records of Gallatin County, Montana. [Affects portion of N Y2 18-2S-6El 14. Easement and Right-of-Way Agreement between Edmund Burke III and Thomas D. Burke and The City of Bozeman recorded May 4, 1983 in Film 76, page 85, records of Gallatin County, Montana. [Affects portion of NE % 18w2S-6El 15, Right-of-Way Easement to The Mountain States Telephone and Telegraph Company recorded May 14, 1982 in Film 69, page 1739, records of Gallatin County, Montana. [Affects portion of SEY4 7w2S-6El 16, The effect of a Note on the recorded plat as follows: "The ties from Electric Heights to the Vernon-Spangelo and Combs tracts given in the Peets to Burke Deed do not correspond to the location of these tracts as found marked on the ground. The Burke line is based on the location of the found monuments, " 1 7. The effect of Pipe Line Right-of-Way as disclosed by Warranty Deed between Adolph Peterson and Florence T. Peterson, as Grantors and Reider S. Peterson and Nancy E. Peterson, as Grantees, dated July 9, 1976 and recorded July 14, 1976 in Film 33, page 1555, as follows: "Also including a right-of-way for a single pipe line over and across Blocks Six (6) and Lots Thirteen (13) to Fifteen (15) inclusive, Block Eight (8); Blocks Nine (9) and Ten (10); also over and across the vacated streets and alleys adjacent to said Blocks, All being in Electric Heights Addition to The City of Bozeman." SL/45100 CLM . CONDITIONS AND STIPULATIONS ~ _4 . '< '. , , . .... . , ,. b - . . , .. . {Continued) 7. DETERMINATION, EXTENT OF LIABILITY AND COINSURANCE. (b) When liability and the extent of loss or damage has been definitely This policy is a contract of indemnity against actual monetarr; loss or fixed in accordance with these Conditions and Stipulations, the loss or damage sustained or incurred by the insured claimant who has su ered loss damage shall be payable within 30 days thereafter. or damage by reason of matters insured against by this policy and only to 13. SUBROGATION UPON PAYMENT OR SETTLEMENT. the extent herein described. (a) The liability of the Company under this policy shall not exceed the (a) The Company's Right of Subrogation. least of: Whenever the Company shall have settled and paid a claim under this (i) the Amount of Insurance stated in Schedule A; or, policy, all right of subrogation shall vest in the Company unaffected by any act of the insured claimant. (ii) the difference between the value of the insured estate or interest as The Company shall be subrogated to and be entitled to all rights and insured and the value of the insured estate or interest subject to the defect, remedies which the insured claimant would have had against any person or lien or encumbrance insured against by this policy. property in respect to the claim had this policy not been issued. If (b) In the event the Amount of Insurance stated in Schedule A at the requested by the Company, ihe insured claimant shall transfer to the Date of Policy is less than 80 percent of the value of the insured estate or Company all rights and remedies against any person or propert)' necessary interest or the full consideration paid for the land, whichever is less, or if in order to perfect this right of subrogation. The insured claimant shall subsequent to the Date of Policy an improvement is erected on the land permit the Company to sue, compromise or settle in the name of the which increases the value of the insured estate or interest by at least 20 insured claimant and to use the name of the insured claimant in any percent over the Amount of Insurance stated in Schedule A, then this transaction or litigation involving these rights or remedies. Policy is subject to the following: If a payment on account of a claim does not fully cover the loss of the (i) where no subsequent improvement has been made, as to any partial insured claimant, the Company shall be subrogated to these rights and loss, the Company shall only pay the loss pro rata in the proportion that remedies in the proportion which the Company's payment bcars to thc the amount of insurance at Date of Policy bears to the total value' of the whole amount of the loss. insured estate or interest at Date of Policy; or If loss should result from any act of the insured claimant, as statcd (ii) where a subsequent improvement has been made, as to any partial above, that act shall not void this policy, but the Company, in that evcnt, loss, the Comrany shall only pay the loss pro rata in the proportion that shall be required to pay only that part of any losses insured against by this 120 percent 0 the Amount of Insurance statcd in Schedule A bears to the policy which shall exceed the amount, if any, lost to the Company by sum of the Amount of Insurance stated in Schedule A and the amount reason of the impairment by the insured claimant of the Company's right expended for the improvement. of subrogation. The provisions of this haragraph shall not apply to costs, attorneys' fees (b) The Company's Rights Against Non-insured Obligors. and expenses for which t e Company is liable under this policy, and shall The Comc,any's right of subrogation against non-insurcd obligors shall only apply to that portion of any loss which exceeds, in the aggregate. 10 exist and s all include, without limitation, the rights of the insured to percent of the Amount of Insurance stated in Schedule A. indemnities, guaranties, other policies of insurance or bonds, (c) The Company will pay only thosc costs, attorneys' fees and expenses notwithstanding any terms or <.:Onditions contained in those instruments incurred in accordance with Section 4 of these Conditions and Stipulations. which provide for subrogation rights by reason of this policy. 8. APPORTIONMENT. 14. ARBITRATION If the land described in Schedule A consists of two or more parcels Unless prohibited by applicable law, either the Company or the insured which are not used as a single site, and a loss is established affecting one or more of the parcels but not all, the loss shall be computed and settled on a may demand arbitration pursuant to the Title Insurance Arbitration Rules of the American Arbitration Association. Arbitrable matters may include, pro rata basis as if the amount of insurance under this policy was divided but are not limited to, any controversy or claim between the Company and pro rata as to the value on Date of Policy of each separate parcel to the the insured arising out of or relating to this policy, any servicc of thc whole, exclusive of any improvements made subsequent to Date of Policy, Company in connection with its issuance or the breach of a policy unless a liability or value has otherwise been agreed upon as to each parcel provision or othcr obligation. All arbitrable matters when the Amount of by the Company and the insured at the time of the issuance of this policy Insurance is $1,000,000 or less shall be arbitrated at the option of eithcr thc and shown by an express statement or by an endorsement attached to this Company or the insured. All arbitrable matters when the Amount of policy. Insurance is in excess of $1,000,000 shall be arbitrated only when agrecd to 9. LIMITATION OF LIABILITY. by both the Company and the insured. Arbitration pursuant to this policy (a) If the Company establishes the title, or removes the alleged defect, and under the Rules in effect on the date the demand for arbitration is lien or encumbrance, or cures the lack of a right of access to or from the made or, at the option of the insured, the Rules in effect at Date of Policy land, or cures the claim of unmarketability of title, all as insured, in a shall be binding upon the parties. The award may include attorneys' fees reasonably diligent manner by any method, including litigation and the only if the laws of thc state in which the land is located permit a court to award attorneys' fees to a prevailing party. Judgment upon the award completion of any appeals therefrom, it shall have fully pcrformed its rendered by the Arbitrator(s) may be entered in any court having obligations with respect to that matter and shall not be liable for any loss jurisdiction thereof. or damage caused thereby. (b) In the event of any litigation. including litigation by the Company The law of the situs of the land shall apply to an arbitration under the or with the Company.s consent, the Company shall have no liability for Title Insurance Arbitration Rules. loss or dama~e until there has been a final determination by a court of A copy of the Rules may be obtaincd from the Company upon request. competent junsdiction, and disposition of all appeals therefrom, adverse to 15. LIABILITY LIMITED TO THIS POLICY; POLICY ENTIRE the title as insured. (c) The Company shall not be liable for loss or damage to any insured CONTRACT. for liability voluntarily assumed by the insured in settling any claim or suit (a) This policy together with all endorsements, if any, attached hereto without the prior written consent of the Company. by the Company is the entire policy and contract betwecn thc insured and 10. REDUCTION OF INSURANCE; REDUCTION OR TERMINATION the Company. In interpretin.g any provision of this policy, this policy shall be construed as a whole. OF LIABILITY. (b) Any claim of loss or damage, whether or not based on negligencc, All payments under this c,olicy, exceht payments made for costs, and which arises out of the status of the title to the estate or interest attorneys' fees and expenses, s all reduce t e amount of the insurance pro covered hereby or by any action asserting such claim, shall be restricted to tanto. this policy. 11. LIABILITY NONCUMULATIVE (c) No amendment of or endorsement to this policy can be made except by a writing endorsed hereon or attached hereto signed by either the It is expressly understood that the amount of insurance under this President, a Vice President, the Secretary, an Assistant Secretary, or policy shall be reduced by any amount the Company may pay under any validating officer or authorized signatory of the Company. policy insuring a mortgage to which exception is taken in Schedule B or to 16. SEVERABILITY. which the insured has agreed, assumed, or taken subject, or which Is In the event any provision of the policy is held invalid or unenforceable hereafter executed by an insured and which is a charge or lien on the under applicable law, the policy shall be deemed not to include that provi- estate or interest described or referred to In Schedule A, and the amount sion and all other provisions shall remain in full forcc and cffcct. so paid shall be deemed a payment under this policy to the Insured owner. 17. NOTICES, WHERE SENT. 12. PAYMENT OF LOSS. All notices required to be given the Company and any statement in writing (a) No paymenl shall be made wilhout producing this policy for endorsement required to be furnished thc COlllpany shall include the number of this policy and of the payment unless the policy has been losl or destroyed, in which case proof shall be addressed to COllllllonwealth Land Title Insurance Company. Eight Penn of loss or destruction shall be furnished to the salis faction of Ille Company. Center, Philadelphia, Pennsylvania 19103-2198. NM 1 PA 10 ALTA Owner's Policy (10-17-92) Form 1190-3 Cover Page ORIGINAL Valid Only If Face Page, Schedules A and B Are Attached , . " -. ,.STATEMENT . . No, 42186 P.o. BOX 396 . BOZEMAN, MT 59771.0396 . (406) 587~663 PLEASE NOTE: PAYMENT IS DUE UPON RECEIPT OF THIS STATEMENT r I EDMUND BURKE. MARTHA B, BURKE AND THOMAS D. BURKE DATE: November 4. 1993 17KAULUANA P. KAILUA. HAWAII 96734 ORDER NO.: 1-45127 L ..J PAYMENT PLEASE DETACH THIS PORTION AND RETURN WITH YOUR PAYMENT. ORDER NO: 1-45127 DATE: November 4. 1993 (Burke) RE: Tract 1 of COS No. 1778, Gallatin County OWner's Policy $894.00 TOTAL DUE $894.00 (less payment) (894.00) PD 8-28-93 by Burke CK# 0284 BALANCE DUE' $ 0.00 THANK YOU! c1m I~I :;~:=:-MT...171__ ORIGINAl... . (406) 587~663 .'. ... IIC!I'VED.oEC 2 9 e .. .. 01 '~.. .'jq,&'..... . TRANS'MITTA\. LEtTER , " ~ AMERICAN LAND TITLE COMPANY WESTBROOK CENTER 1800 WEST KOCH P.O, BOX 396 PHONE (406) 687-6663 BOZEMAN. MONTANA 69716 THE CITY OF BOZEMAN P.O. BOX 640 BOZEMAN,MT 59715 ATTN: PAUL LUWE, CITY ATTORNEY Date Out: f ~'dg- --9 3 Order No.: 1-45127 Reference: (The City of Bozeman) In connection with the above transaction. we enclose: ( ) Purchasers (XXXX) Policy of Title Insurance (XXXX) Owners ( ) Standard Loan ( ) ALTA Loan ( ) Vendor's Equity ( ) Endorsement(s) ( ) Deed ( ) Notice of Purchaser's Interest ( ) Trust Indenture I Deed of Trust / Mortgage ( ) Assignment ( ) Satisfaction I Reconveyance ( ) ( ) ( ) Extra copies of documents which you requested ( ) Receipted Tax Bill (XXXX) Bill BALANCE DUE $0.00 ( ) Refund: our Check # in the amount of $ Thank you for giving us the opportunity of serving you, AMERICAN LAND TITLE COMPANY CCUAcUl 4 Scott .Luckay Examiner CLM/45100