HomeMy WebLinkAbout3-24-08_Burke Park Lots Purchase
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Ron Dingman, Park and Recreation Director
Chris Kukulski, City Manager
SUBJECT: Burke Park Lots Purchase
MEETING DATE: March 24, 2008
RECOMMENDATION: Staff recommends that the Commission approve the purchase of the
Burke lots for $520,000 using $250,000 from park land cash-in-lieu funds and $270,000 from
General funds, and authorize the City Manager to execute the Burke property Buy-Sell
agreement and Settlement Agreement.
BACKGROUND: In 1993 the City of Bozeman purchased approximately 40 acres from the
Burke family – for the amount of $235,000 - to be preserved and used as public park land. A
stipulation in the 1993 Bargain Sale Agreement stated that the Burke family “will retain a parcel
comprising approximately 2 acres described in exhibit ‘B’…………” It further states that
“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.”
The Burke family has allowed the public to use these retained lots as part of the park for the past
15 years. The agreement states that this arrangement will terminate when building permits are
issued for the single-family homes.
The Burkes want to sell the lots to the City to preserve the park. They remain interested in
acquiring a house in Bozeman. The Gallatin Valley Land Trust (GVLT) has been negotiating
intensively with the Burke’s since January 2006 in an effort to reach a buy/sell agreement on the
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lots. There have been several meetings with City staff and GVLT- and appraisals conducted- to
determine the cost of the property and how they would be purchased. The Recreation and Parks
Advisory Board (RPAB) has motioned and voted to recommend using up to $250,000 of park
land cash-in-lieu funds toward the purchase of the Burke lots.
A proposed Settlement Agreement between the City of Bozeman and the Burke family
acknowledges a maximum of 3 building lots on the property. An appraisal of the property has
been completed for the City which places the value of each lot at $240,000, putting the value of
the land at $720,000. The Burke family is willing to make a charitable donation of $220,000 of
the value and sell the property to the City for $500,000. Attached are the draft Settlement
Agreement and Buy-Sell agreements. GVLT has incurred $60,000 in expenses during the
negotiation process. They have raised and invested $15,500 in park improvements and recently
received a generous $20,000 donation but are still fund raising in order to recover the additional
$25,000. They are requesting $20,000 to be appropriated, in addition to the purchase price, to
help cover their expenses.
FISCAL EFFECTS: Spending $250,000 from cash-in-lieu funds will leave a balance of
approximately $250,000. $270,000 will need to be taken out of the General fund. There will be
no foreseeable increase in maintenance cost since the City currently maintains the 2 lots along
with Burke Park.
ALTERNATIVES: As suggested by the City Commission.
Respectfully submitted,
_________________________________ ____________________________
Ron Dingman, Parks and Recreation Director Chris A. Kukulski, City Manager
Attachments: Settlement agreement
Buy/Sell Agreement
Report compiled on 2/27/2004
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SETTLEMENT AGREEMENT Page 1 of 7
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (“Agreement”) is made this ____ day of
February, 2008, by and between, Edmund Burke, Trustee of the
Edmund Burke Revocable Trust Dated march 2, 1981, Martha Benge
Burke, Trustee of the Martha B. Burke Revocable Trust Dated March
2, 1981 and Thomas D. Burke (collectively ABurke@) and the City
of Bozeman.
WHEREAS, the City of Bozeman and Burke entered into a Bargain
Sale Agreement dated August 6, 1993, a copy of said agreement is
attached hereto as Exhibit “A” and incorporated herein by
reference (“1993 Agreement”);
WHEREAS, on or about August 27, 1993, Burke transferred certain
real property to the City of Bozeman (the “Burke Park Property”),
all as more specifically described in that certain Warranty Deed,
recorded at Film 135, Page 1594 in the records of the County
Clerk and Recorder, Gallatin County, Montana, a copy of said deed
is attached hereto as Exhibit “B”, and incorporated herein by
reference (“Burke Park Deed”);
WHEREAS, pursuant to the terms of the 1993 Agreement and the
Burke Park Deed, Burke retained certain real property adjacent to
the Burke Park Property, which real property is more specifically
described on the attached Exhibit “C”, and incorporated herein by
reference (“Burke Property”);
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SETTLEMENT AGREEMENT Page 2 of 7
WHEREAS, subsequent to the conveyance of the Burke Park Property,
a dispute has arisen between Burke and the City of Bozeman as to
the number of building rights associated with the Burke Property;
WHEREAS, the City of Bozeman has argued that interprets the 1993
Agreement should be interpreted to only to allow Burke to
construct only two (2), one (1) story, single family residences
on the Burke Property;
WHEREAS, Burke disputes the applicability of the 1993 Agreement
as it relates to any future development of the Burke Property, as
any restriction contained in the 1993 Agreement merged into the
Burke Park Deed at closing, and the Burke Deed contains no use
restriction;
WHEREAS, notwithstanding the foregoing, Burke also disputes that
in the event the 1993 Agreement controls the development of the
Burke Property, that such sets a cap on the development rights
associated with the Burke Property, and instead, Burke maintains
that the terms of the 1993 Agreement represent the minimum
development rights associated with such property;
WHEREAS, Burke maintains that up to five (5) single family
residences may be placed on the Burke Property taking into
account applicable subdivision and zoning regulations, the size
and orientation of the Burke Property and the highest and best
use of the Burke Property; and
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SETTLEMENT AGREEMENT Page 3 of 7
WHEREAS, in an effort to avoid the unnecessary expense and delay
associated with a protracted legal dispute concerning the
development rights associated with the Burke Property, and to
resolve any uncertainty over the allowable future development of
the Burke property, the City of Bozeman and Burke desire to
clarify the number of development rights associated with the
Burke Property. This Agreement may also facilitate the
conveyance of the Burke Property to the City of Bozeman. In the
event subject Burke Property is not conveyed to the City of
Bozeman, pursuant to a Buy-Sell Agreement, this Settlement
Agreement will be null and void.
NOW THEREFORE, for and in consideration of the covenants and
conditions expressed herein, and for $1.00 and other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties to this Agreement do hereby
agree as follows:
1. Development Rights. Burke shall have three (3) development
rights with regard to the Burke Property. Each
development right shall be defined as the right to
construct one (1), single story (excluding daylight
basement), single family residence and one (1) guest
house or other out buildings, as may be allowed by
applicable zoning and lot size restriction, and subject
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SETTLEMENT AGREEMENT Page 4 of 7
to all applicable codes. These rights are not personal
to Burke and may be transferred to Burke’s successors and
assigns. The Parties acknowledge that the property has
been previously platted and that the lots first must be
aggregated into three separate lots prior to obtaining a
building permit.
2. Affirmation of Existing Right. The parties hereto agree
that this Agreement does not represent the grant of any new
development rights to Burke or the enlargement of any pre-
existing right. Rather this Agreement serves as an agreed to
compromise and clarification of Burke’s historical development
rights.
3. Abstract of Agreement. The parties agree that an abstract
of this Agreement may be recorded by either party hereto in the
office of the Clerk and Recorder for Gallatin County, Montana.
4. Miscellaneous Provisions.
A. Time. Time is of the essence of this Agreement.
B. Severability and Integration. It is agreed and understood
by and between the parties hereto that in the event any one or more
of the provisions of this Agreement as herein set forth, reserved,
and contained are found and determined to be unenforceable by a
court of competent jurisdiction, or through the act or actions of
the Legislature of this state, the remaining provisions of this
Agreement shall nevertheless continue in full force and effect and
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SETTLEMENT AGREEMENT Page 5 of 7
be binding on the parties hereto, their heirs, personal
representatives, and assigns.
It is further agreed and understood by and between the parties
hereto that this Agreement constitutes the entire agreement and
understanding by and between the parties hereto in connection with
the real property which is the subject of this Agreement and the
subject matter herein contained, and that this Agreement supersedes
all prior and/or contemporaneous oral or written agreements and
understandings of the parties which may conflict with the expressed
terms, covenants, and conditions herein set forth, reserved, and
contained on the part of the parties to be kept and performed. In
this connection, no assertion, allegation, representations,
covenant, or condition not expressed in this Agreement shall affect
or be effective to interpret the intent of the parties, modify or
change this Agreement, or restrict the expressed provisions
contained herein.
C. Amendment. It is agreed and understood by and between the
parties hereto that any modification or amendment to this Agreement
must be in writing and signed by each of the parties hereto in
order for such amendment to be effective.
D. Non-Waiver. It is agreed and understood by and between
the parties hereto that a waiver by a party hereto of any breach of
any term, covenant, or condition herein set forth, reserved, and
contained to be kept and performed on the part of a party hereto
shall not act as a bar or a precedent to any enforcement by such
party of any subsequent breach by the other party, nor shall such
waiver affect any of the other terms, covenants, and conditions
herein set forth, reserved, and contained.
E. Venue. The parties hereto agree that any action
instituted, at law or in equity to enforce the terms, covenants,
and conditions of this Agreement as herein set forth, reserved, and
contained, shall be brought in the Eighteenth Judicial District
Court of Gallatin County, Montana.
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SETTLEMENT AGREEMENT Page 6 of 7
F. Binding Effect. It is agreed and understood by and
between the parties hereto that all of the terms, covenants, and
conditions herein set forth, reserved, and contained on the part of
the parties to be kept and performed shall be binding upon and
inure to the benefit of, and be enforceable by the heirs,
successors, permitted assigns, and personal representatives of the
parties hereto and that any party executing this Agreement in a
representative capacity has the power and authority to duly and
validly execute this Agreement.
G. Counterparts and Facsimile Execution. This Agreement may
be executed in counterparts and each separate executed copy, taken
together, shall constitute one and the same instrument. Signatures
of the parties on this instrument, or any counterpart thereof,
transmitted by facsimile shall be valid and binding as originals.
H. Headings. It is agreed and understood by and between the
parties hereto that the caption headings in this Agreement are for
convenience only, and do not apply to or affect the construction or
interpretation of any of the terms hereof.
I. Attorney Fees. In any action brought by either party
hereto to enforce any of the terms of this Agreement, the
prevailing party in such action shall be entitled to such
reasonable costs attorney fees as the court or arbitrator shall
determine just, including such costs and attorney fees on appeal
and any fees or salary of City Attorney or staff attorneys.
BURKE: CITY OF BOZEMAN:
___________________________ ____________________________
Edmund Burke, Trustee By: ___________________
Edmund Burke Revocable Trust Its: ___________________
Dated March 2, 1981
____________________________
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SETTLEMENT AGREEMENT Page 7 of 7
Martha Benge Burke, Trustee
Martha B. Burke Revocable Trust
Dated March 2, 1981
____________________________
Thomas D. Burke
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TO: Honorable Mayor and City Commission
FROM: Stephen T. Johnson, Executive Director
RE: Acquisition of parkland, completion of Burke Park
DATE: March 19, 2008
Gallatin Valley Land Trust’s founding and the creation of Burke Park are inextricably linked in
Bozeman’s history. For fifteen years since the City’s acquisition of Burke Park, Gallatin Valley Land
Trust has worked to complete the vision by acquiring the 2 acres retained by the Burke family. We
are delighted that we can finally bring forward an agreement for purchase; one which includes a
significant donation of value by the Burkes.
• An appraisal just completed for the City indicates a per-lot value of $240,000. The appraiser,
in reaching this conclusion, considered the Settlement Agreement negotiated between the
City and the Burkes stipulates that the property could be developed into 3 lots. Therefore,
the value of the property is $720,000.
• The Burkes are offering a donation of $220,000 of the land value.
• The purchase price is $500,000, and related expenses total $58,000.
• Gallatin Valley Land Trust has raised $35,000 toward the $58,000 in total expenses and
requests that the City reimburse GVLT $20,000 of the remaining expense. GVLT will
continue fundraising for the balance of funds.
• GVLT is assisting the City in preparing a proposal for funding through the Gallatin County
Open Lands Board. If successful, this will reduce the City’s total cost, but will add
additional transaction expense.
I won’t go on about the value of Burke Park to the community. You know it is a natural park
comprised of approximately 40 acres and experiences over 100,000 user visits per year serving
Bozeman and County residents alike. It is a centerpiece of the City and one of the features that adds
immeasurably to our quality of life. What would the impact of three houses at the summit of Burke
Park be? Incalculable.
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