HomeMy WebLinkAboutBurke 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 3, 2008
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 buy/sell 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 Burke’s want to build a house in Bozeman and have offered to sell the lots to the City to
preserve the park. The Gallatin Valley Land Trust (GVLT) has been negotiating with the
Burke’s in an effort to reach a buy/sell agreement on the 2 retained lots. There have been several
meetings with City staff and GVLT 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.
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Two appraisals were completed on the property. The first was done by a company representing
the Burke family and came in at $1,100,000 for both lots. The City felt that this appraisal did not
take into consider the restriction that only 2 homes can be built on the property. GVLT- at the
request of the City- had another appraisal conducted which came in at $480,000 for both lots.
The Burke family is willing to sell the lots to the City for $500,000 regardless of the appraisals
provided that the City acknowledges that 3 lots may be built on the property via the attached
settlement agreement. This will allow the Burkes to take a charitable deduction for a portion of
the disputed differences between appraisals. Attached are the draft settlement agreement and
Buy-Sell agreements. GVLT has incurred $20,000 in expenses during the negotiation process. It
is unclear at this time if GVLT will want reimbursement for the amount they have spent.
RECOMMENDATION: Staff recommends that the Commission approve the purchase of the
Burke lots for $500,000 using $250,000 from park land cash-in-lieu funds and $250,000 from
General funds, and authorize the City Manager to execute the Buy-Sell agreement and settlement
agreement.
FISCAL EFFECTS: Spending $250,000 from cash-in-lieu funds will leave a balance of
approximately $250,000. $250,000 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
Report compiled on 2/27/2004
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BUY-SELL AGREEMENT
This contract stipulates the terms of sale of this real property. Read carefully before
signing. This is a legally binding contract. If not understood, seek competent
advice.
THIS AGREEMENT is made at Bozeman, Montana, ______________, 2008.
1. The City of Bozeman , (hereinafter called "Buyer") agrees to purchase, and
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, (hereinafter collectively called "Seller") agrees to sell the
following described real property (hereinafter referred to as the "Property") located in the
City of Bozeman, Gallatin County, Montana, generally described as:
Lots 27, 28, 29, 30 and 31 of Block 20 of the Electric Heights Addition to the City of
Bozeman, Gallatin County, Montana;
Lots 1, 2, 3, 4, 5, 6, 34, 35, 36, 37, 38 and 39 of Block 21 of the Electric Heights Addition to
the City of Bozeman, Gallatin County, Montana;
Being approximately 1.75 acres.
and legally described as follows:
See attached Exhibit “A”
All as shown on preliminary commitment for title insurance for the Property, which shall
supersede the above description if different, and be appended to this Agreement as Exhibit
AB@.
TOGETHER with all interest of Seller in the mineral estate appurtenant thereto, vacated
streets and alleys adjacent thereto, all easements and all other appurtenances thereto; and
all structures, improvements, and permanent fixtures thereon.
2. PERSONAL PROPERTY: The following items of personal property, free of liens and
without warranty of condition, are included: None – the Property is unimproved.
3. WATER: Description of water, if any, to be transferred: All appurtenant water rights
owned by Seller, but Seller makes representation that Seller has any water rights. Cost of
transfer (DNRC fee) to be paid by Buyer.
4. RECEIPT OF EARNEST MONEY: The Seller hereby acknowledges receipt from Buyer
of earnest money in the amount of ONE THOUSAND FIVE HUNDRED AND 00/100 U.S.
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Dollars ($1,500.00) as evidenced by ___ cash, check, ____ or
_______________________________________________________________________.
All parties to this transaction agree, unless otherwise provided herein, that the earnest
monies will be deposited within five (5) business days of the date all parties have signed
the Agreement, and such funds will be held in an interest-bearing escrow account by
American Land Title Company in Bozeman, Montana, title insurance agent and closing
escrow agent for this transaction. Parties agree that interest accruing on earnest money, if
any, while deposited, shall be payable to Buyer.
5. PURCHASE PRICE AND TERMS:
Total purchase price is FIVE HUNDRED THOUSAND AND 00/100 U.S. Dollars
($500,000.00) payable as follows:
$ 1,500.00 earnest money to be applied at Closing; and
$ 498,500.00 in cash, payable at Closing.
6. BUYER'S REPRESENTATION OF FUNDS: Buyer represents that it has sufficient
funds for the payment of the purchase price/down payment and closing costs to close this
sale in accordance with this Agreement and is not relying upon any contingent source of
such funds unless otherwise expressly set forth herein.
7. APPRAISAL PROVISION: Buyer represents that Buyer has had the Property appraised
and is satisfied that the Property has appraised for the stated purchase price herein.
8. CONTINGENCIES: The contingencies listed below shall be deemed to have been
released, waived, or satisfied, and the transaction shall continue to closing, unless by the
date specified for each contingency, the party requesting that contingency has notified the
other party or other party's agent in writing that the contingency is not released, waived, or
satisfied. If a party has notified the other party prior to the release date that a contingency
is not released, waived, or satisfied, the transaction is terminated, and the earnest money
will be returned to the Buyer, and neither party shall have any obligation to the other with
regard to this Agreement or the transaction contemplated herein, unless the parties
negotiate other terms or provisions.
TITLE CONTINGENCY: This offer is contingent upon Buyer=s receipt and approval
to Buyer=s satisfaction of the preliminary title commitment for the Property.
Release Date: Ten (10) business days from Buyer or Buyer’s agent’s receipt of the
preliminary commitment.
PROPERTY INVESTIGATION: This offer is contingent upon Buyer=s independent
investigation of and satisfaction with any or all of the following conditions relating to
the Property, including but not limited to; covenants, zoning, access, easements,
well depths, septic and sanitation restrictions, surveys or other means of
establishing the corners and boundaries, special improvement districts, restrictions
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affecting use, special building requirements, future assessments, utility hook-up and
installation costs, environmental hazards, or anything else that the Buyer deems
appropriate.
Release Date: Thirty (30) days from the date of final execution, by all parties, of this
Agreement.
9. PROPERTIES INSPECTIONS: The Buyer is aware that Seller has not conducted an
expert inspection or analysis of the Property or its condition and, except as otherwise
expressly provided in this Agreement or in any Addendum hereto, make no representations
to the Buyer as to its condition, does not assure that the Property will be satisfactory to the
Buyer in all respects, or that the Property and/or improvements comply with current building
and zoning codes and Buyer acknowledges that Seller IS NOT a building inspector,
building contractor, structural engineer, electrician, plumber, sanitarian, septic or cesspool
expert, well driller or well expert, land surveyor, civil engineer, flood plain or water drainage
expert, roofing contractor or roofing expert, or experts in identifying hazardous waste and/or
toxic materials.
10. ADDITIONAL PROVISIONS:
A. The parties acknowledge and agree that during the Buyer=s due diligence period
under Section 8 above, the Buyer and the Buyer=s agents shall have full access at all
reasonable times to all parts of the subject Property for the purpose of conducting such
inspections as the Buyer deems necessary or desirable, provided that (1) all such
inspections are conducted at the Buyer=s sole expense, that (2) where disturbed, the
Property shall be returned to its original condition, and (3) that Buyer shall not permit any
liens to attach to the Property as a result of its activities thereon.
Further, the Buyer, and for the Buyer=s agents, contractors, and employees, agrees
to indemnify and hold harmless the Seller from and against any and all liability, loss, or
damage which may result from or arise out of Buyer=s such activities on the Property,
however, the mere findings or results of Buyer=s inspections, should such findings be
adverse, shall not be deemed to create any loss or damage to Seller. This indemnification
covenant herein contained shall survive Closing and not be merged into or extinguished by
any documents of conveyance delivered at Closing. Such indemnification obligation shall
survive either the Closing or termination of this Agreement, as applicable, for a period of
three (3) years, then shall be of no further force or effect.
B. The parties acknowledge that currently there is a dispute between Buyer and
Seller regarding restrictions on the use of the Property. Notwithstanding anything in this
Agreement to the contrary, if resolution is not reached on the use restrictions governing the
Property within sixty (60) days from the date of final execution, by all parties, of this
Agreement, Seller may unilaterally terminate this Agreement, in which case the transaction
contemplated herein is cancelled, all earnest money will be returned to the Buyer and
neither party shall have any obligation to the other with regard to this Agreement or the
transaction contemplated herein.
11. SELLER=S REPRESENTATIONS AND WARRANTIES: Seller represents and
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warrants to Buyer that:
A. Seller is the fee simple owner of all of the Property; and that Seller has the right
and authority to execute documents of conveyance for the Property to Buyer.
B. Seller has not caused or consented to any work on the Property which could
result in the filing of construction liens against the Property, and Seller shall not permit such
liens to arise prior to Closing.
C. No person, firm, or entity other than Buyer has any right to acquire any of the
Property, and there is no outstanding agreement to sell the Property to any third party.
Seller has not granted and will not grant any third party any right of use of the Property after
the Closing Date. No leases, licenses, agreements, or other use rights of any type or
nature, with or in favor of any third party, whether written or oral, whether of record or not of
record, exist as to the Property, other than as have been disclosed by Seller herein below:
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
_____________________.
D. All information and disclosures made by Seller and its agents and
representatives are true and correct to the best of Seller=s knowledge and belief as of date
and time of Closing.
Seller agrees to hold Buyer harmless and indemnify Buyer from and against any and
all liability, claims, actions, suits, damages, and costs arising out of the untruth or out of
Seller=s breach of any of the foregoing representations and or warranties. These
representations and warranties, and the indemnification covenant herein contained, shall
survive Closing and not be merged into or extinguished by any documents of conveyance
delivered at Closing.
12. CONVEYANCE: The Seller shall convey the Property by Warranty Deed, free of all
liens and encumbrances except those described in the title insurance commitment as
approved by Buyer.
13. TITLE INSURANCE: Seller, at Seller's expense, shall furnish Buyer Title Insurance
evidenced by a standard form American Land Title Association title insurance commitment
in an amount equal to the purchase price, committing to insure merchantable title to the
Property in Buyer's name, free and clear of all liens and encumbrances except: zoning
ordinances; building and use restrictions; reservations in federal patents; beneficial
easements, apparent or of record; Special Improvement Districts; real estate taxes for the
year in which closing occurs; and the standard pre-printed exclusions. Buyer may
purchase additional title coverage for an additional cost. It is recommended that Buyer
obtain details from a title company.
14. MERCHANTABLE TITLE: If the Seller's title is not merchantable and cannot be made
merchantable before the stated closing date, TEN (10) ADDITIONAL DAYS SHALL BE
ALLOWED FOR THE SELLER TO MAKE SUCH TITLE MERCHANTABLE. If title is not
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merchantable after additional specified time, this Agreement is terminated, unless Buyer
elects to waive such defects and proceed to Closing. The parties may agree to negotiate
alternative terms or provisions. All mortgages, judgments, and liens shall be discharged by
the Seller and shall be satisfied at or prior to Closing or from Seller's proceeds at the time
of Closing, unless otherwise provided herein. Seller agrees that no additional
encumbrances, restrictions, easements or other adverse title conditions will attach or be
placed against the title to the Property subsequent to the effective date of the preliminary
title commitment approved by Buyer.
15. SPECIAL IMPROVEMENT DISTRICTS: Special Improvement Districts (including rural
SIDs), including those that have been noticed to Seller by City/County, but not yet spread
or currently assessed, if any, will be:
paid off by Seller at Closing;
XX assumed by Buyer at Closing; OR
___
(Other)_____________________________________________________
All perpetual SIDs shall be assumed by Buyer.
16. PRORATION OF TAXES AND ASSESSMENTS: Seller and Buyer agree to prorate
taxes, Special Improvement District assessments for the current tax year, as well as pre-
paid rents as of the date of Closing, unless otherwise agreed and: Closing Agent's fee to
be split equally. Seller to pay for cost of document preparation (Warranty Deed, etc.).
Buyer to pay cost of recording Deed .
17. CLOSING DATE: The date of Closing shall be May 9, 2008. The parties may, by
mutual agreement, agree to close the transaction at any time prior to the date specified.
The Buyer and Seller will deposit with the closing agent all instruments and monies
necessary to complete the purchase in accordance with this Agreement by such date.
18. POSSESSION: Seller shall deliver to Buyer possession of the Property and allow
occupancy:
____ on the date of Closing; OR
____ on the date of recording the Deed, Notice of Purchaser's Interest, OR
XXX (Other) Buyer is currently in possession under Buyer’s lease with Seller, said
lease shall terminate as of the date of Closing.
Property shall be vacant unless otherwise agreed in writing.
19. CONDITION OF PROPERTY: Seller agrees that the Property shall be in the same
condition, normal wear and tear excepted, from the date of the execution of this Agreement
up to the time Buyer takes possession of the Property.
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20. NOXIOUS WEEDS DISCLOSURE: Buyers of property in the state of Montana should
be aware that some properties contain noxious weeds. The laws of the state of Montana
require owners of property within this state to control, and to the extent possible, eradicate
noxious weeds. For information concerning noxious weeds and your obligation as an
owner of property, contact either your local County extension agent or Weed Control Board.
21. MEGAN=S LAW DISCLOSURE: Pursuant to the provisions of Title 46, Chapter 23,
Part 5 of the Montana Code Annotated, certain individuals are required to register their
address with the local law enforcement agencies as part of Montana=s Sexual and Violent
Offender Registration Act. In some communities, law enforcement offices will make the
information concerning registered offenders available to the public. If you desire further
information please contact the local County Sheriff=s office, the Department of Justice in
Helena, Montana, and the probation officers assigned to the area.
22. RADON DISCLOSURE STATEMENT: The following disclosure is given pursuant to
the Montana Radon Control Act, Montana Code Annotated '75-3-606. RADON GAS:
RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT, WHEN IT HAS
ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY PRESENT HEALTH
RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER TIME. LEVELS OF RADON
THAT EXCEED FEDERAL GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN
MONTANA. ADDITIONAL INFORMATION REGARDING RADON AND RADON TESTING
MAY BE OBTAINED FROM YOUR COUNTY OR STATE PUBLIC HEALTH UNIT. If the
Property has been tested for Radon, the Seller will provide a copy of the test results
concurrent with an executed copy of this Agreement. If the Property has received radon
mitigation treatment, the Seller will provide the evidence of the mitigation treatment
concurrent with an executed copy of this Agreement.
23. MOLD DISCLOSURE STATEMENT: The following disclosure is given pursuant to the
Montana Mold Disclosure Act, Montana Code Annotated '70-16-701 et seq. MOLD: There
are many types of mold. Inhabitable properties are not, and cannot be, constructed to
exclude mold. Moisture is one of the most significant factors contributing to mold growth.
Information about controlling mold growth may be available from your county extension
agent or health department. Certain strains of mold may cause damage to property and
may adversely affect the health of susceptible persons, including allergic reactions that may
include skin, eye, nose, and throat irritation. Certain strains of mold may cause infections,
particularly in individuals with suppressed immune systems. Some experts contend that
certain strains of mold may cause serious and even life-threatening diseases. However,
experts do not agree about the nature and extent of the health problems caused by mold or
about the level of mold exposure that may cause health problems. The Center of Disease
Control and Prevention is studying the link between mold and serious health conditions.
The seller, landlord, seller=s agent, buyer=s agent, or property manager cannot and does
not represent or warrant the absence of mold. It is the buyer=s or tenant=s obligation to
determine whether a mold problem is present. To do so, the buyer or tenant should hire a
qualified inspector and make any contract to purchase, rent, or lease contingent upon the
results of that inspection. A seller, landlord, seller=s agent, buyer=s agent, or property
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manager who provides this mold disclosure statement, provides for the disclosure of any
prior testing and any subsequent mitigation or treatment for mold, and discloses any
knowledge of mold is not liable in any action based on the presence of or propensity for
mold in a building that is subject to any contract to purchase, rent, or lease.
24. BUYER'S REMEDIES: (A) If the Seller fails to accept the offer contained in this
Agreement within the time period provided in the BUYER'S COMMITMENT section, all
earnest monies shall be returned to the Buyer. (B) If the Seller accepts the offer contained
in this Agreement, but refuses or neglects to consummate the transaction within the time
period provided in this Agreement, the Buyer may:
(1) Demand immediate repayment of all monies that Buyer has paid as earnest money, and
upon the return of such money, the rights and duties of Buyer and Seller under this
Agreement shall be terminated; OR
(2) Demand that Seller specifically perform Seller's obligation under this Agreement; OR
(3) Demand monetary damages from Seller for Seller's failure to perform the terms of this
Agreement.
25. SELLER'S REMEDIES: If the Seller accepts the offer contained in this Agreement
and Buyer refuses or neglects to consummate the transaction within the time period
provided in this Agreement, the Seller may:
(1) Declare the earnest money paid by Buyer be forfeited; OR
(2) Demand that Buyer specifically perform Buyer's duties and obligations under this
Agreement; OR
(3) Demand that Buyer pay monetary damages for Buyer's failure to perform the terms
of this Agreement.
26. BUYER'S AND SELLER=S CERTIFICATION: By entering into this Agreement, each
person or persons executing this Agreement, as Buyer or Seller, represents that he/she is
eighteen (18) years of age or older, of sound mind, and legally competent to own real
property in the State of Montana; and, if acting on behalf of a corporation, partnership, or
other non-human entity, that he/she is duly authorized to enter into this Agreement on
behalf of such entity.
27. CONSENT TO DISCLOSE INFORMATION: Buyer and Seller hereby consent to the
procurement and disclosure by Buyer, Seller, and their attorneys, agents, and other parties
having interests essential to this Agreement, of any and all information reasonably
necessary to consummate the transaction described in this Agreement, specifically
including access to escrows for review of contracts, deeds, trust indentures, or similar
documents concerning this Property or underlying obligations pertaining thereto.
28. RISK OF LOSS: All loss or damage to the Property to any cause is assumed by Seller
through the time of closing unless otherwise specified.
29. TIME IS OF THE ESSENCE: Time is of the essence in this Agreement and all clauses
herein.
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30. BINDING EFFECT AND ASSIGNABILITY: The Agreement is binding upon the heirs,
successors, and assigns of each of the parties hereto. Buyer may only assign this
Agreement with the prior written consent of Seller, which consent may be withheld by Seller
in its sole and absolute discretion. Any assignment or attempted assignment by Buyer
without Seller’s written consent shall be void ab intio.
31. '1031 EXCHANGE: Buyer/Seller herein acknowledges that it is or may be the intention
of either Buyer and\or Seller to enter into an IRC ' 1031 tax-deferred exchange in
connection with this transaction. Each party agrees that it=s rights and obligations under
this Agreement may be assigned for the limited purpose of facilitating such exchange and
that this Agreement may be made part of an integrated, interdependent exchange
agreement. Each party agrees to cooperate with the other in any manner necessary to
enable the exchanging party to qualify for such exchange provided there is no additional
cost or liability to non-exchanging party. This Agreement shall not be contingent upon
either party=s ability to transact an IRC § 1031 exchange.
32. ATTORNEY FEES: In any action brought by the Buyer or the Seller to enforce any of
the terms of this Agreement, the prevailing party in such action shall be entitled to such
reasonable attorney fees as the court or arbitrator shall determine just, including attorney
fees on appeal.
33. COMMISSION: Not Applicable.
34. FACSIMILE: The parties agree that a facsimile copy of this Agreement to Sell and
Purchase which contains the parties' signature may be used as the original.
35. ENTIRE AGREEMENT: This Agreement, together with any attached exhibits and any
addenda or amendments signed by the parties, shall constitute the entire agreement
between Seller and Buyer, and supersedes any other written or oral agreements between
Seller and Buyer. This Agreement can be modified only in writing, signed by the Seller and
Buyer.
36. COUNTERPARTS: A copy of this document may be executed by each
individual/entity separately, and when each has executed a copy thereof, such copies,
taken together, shall be deemed to be a full and complete contract between the parties.
37. EARNEST MONEY DISPUTES: Buyer and Seller agree that, in the event of any
controversy regarding the earnest money and things of value held by the Closing Agent,
unless mutual written instructions are received by the holder of the earnest money and
things of value, the Closing Agent shall not be required to take any action, but may await
any proceedings, or, at the Closing Agent's option and sole discretion, may interplead all
parties and deposit any monies or things of value with a court of competent jurisdiction and
may utilize as much of the earnest money deposit as may be necessary to advance the
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cost and fees required for filing such action.
38. ALTERNATIVE DISPUTE RESOLUTION: At any time, the parties may agree to
submit any dispute arising out of this transaction to mediation or arbitration. Parties, by
agreement, shall specify mediation OR binding arbitration. The cost of such
mediation/arbitration shall be paid equally by the parties.
39. ADDENDA ATTACHED: (Check all that apply)
____ Lead Based Paint Disclosure (HUD Form) ____ Sale of Buyer's Property
Addendum for Additional Provisions ____ Back-up Offer
40. REAL ESTATE BROKERS: The parties to this Agreement confirm that no real estate
licensees have been involved in this transaction.
41. CONTACT PERSONS:
CONTACT PERSON FOR THE BUYER: _______________________________
_______________________________
_______________________________
_______________________________
CONTACT PERSON FOR THE SELLER: Edmund Burke
Burke McPheeters Bordner & Estes
737 Bishop Street, Ste. 3100
Honolulu, HI 96813
Ph. 808.523.9833
Fx. 808.528.1656
eburke@bmbe-law.com
WITH COPY TO: Stephen T. Johnson
Gallatin Valley Land Trust
25 N Willson, Ste E
PO Box 7021
Bozeman, MT 59771-7021
Ph. 406.587.8404 x105
Fx 406.582.1136
Stephen@gvlt.org
Jeremy J. leFeber
Berg, Lilly & Tollefsen, P.C.
One West Main
Bozeman, MT 59715
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Ph. 406.587.3181
Fx. 406.587.3240
jlefeber@berglawfirm.com
42. BUYER'S ACKNOWLEDGMENT: Buyer acknowledges that it has examined the
Property, that Buyer enters into this Agreement in full reliance upon its independent
investigation and judgment, that prior verbal representations by Seller does not modify or
affect this Agreement, and that by signing this Agreement Buyer acknowledges having read
and understood this entire Agreement.
43. BUYER'S COMMITMENT: Buyer agrees to purchase the Property on the terms and
conditions set forth in the above offer and grants to Seller until February 13, 2008, at
5:00pm Mountain Standard Time to accept, in writing, this offer. Buyer may withdraw this
offer at any time prior to being notified of Seller=s written acceptance. If Seller has not
accepted in writing by the time specified, this offer is automatically withdrawn.
I/WE HEREBY ACKNOWLEDGE receipt of a copy of this Agreement bearing my/our
signature(s).
Buyer's Signature: ____________________________
Buyer's Printed Name: _______________________________________________
Buyer's Address: _______________________________________________
44. SELLER'S COMMITMENT: We agree to sell and convey to Buyer the Property on the
terms and conditions hereinabove stated. We acknowledge a receipt of a copy of this
Agreement bearing our signatures and that of the Buyer named above. Dated this _____
day of , 2008, at ________ a.m., p.m. (__________ Time).
\\
\\
SELLER:
_____________________________________
Edmund Burke
Trustee of the Edmund Burke Revocable Trust
Dated March 2, 1981
Address: __________________________
__________________________
__________________________
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_____________________________________
Martha Benge Burke
Trustee of the Martha B. Burke Revocable Trust
Dated March 2, 1981
Address: __________________________
__________________________
__________________________
_____________________________________
Thomas D. Burke
Address: __________________________
__________________________
__________________________
45. ACTION TAKEN, IF OTHER THAN ACCEPTANCE:
_____ Offer Rejected by Seller Seller's Initials ________/_______/_______
_____ Offer Modified per Attached Seller' s Initials _______/_______/_______
Counter offer
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SETTLEMENT AGREEMENT Page 1 of 6
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 6
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 6
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.
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
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
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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
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
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SETTLEMENT AGREEMENT Page 5 of 6
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.
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
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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
____________________________
Martha Benge Burke, Trustee
Martha B. Burke Revocable Trust
Dated March 2, 1981
____________________________
Thomas D. Burke
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