Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-01291-MSK-CBS

Document 344-2

Filed 12/11/2005

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Case 1:03-cv-01291-MSK-CBS

Document 344-2

Filed 12/11/2005

Page 2 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 03-cv-1291-MSK-CBS FRIEDA E. ENSSLE, BURKE E. ENSSLE and HEIDI ENSSLE WILSON Plaintiff(s), v. ILLINOIS TOOL WORKS, INC.; SAMES CORPORATION; BINKS RESEARCH & DEVELOPMENT CORPORATION; and JOHN DOE/JANE DOE (any person receiving value for transfer of Binks R&D assets). Defendant(s). _____________________________________________________________________________ DECLARATION OF DANIEL J. BURKHARDT _____________________________________________________________________________ I, Daniel J. Burkhardt, pursuant to 28 U.S.C. §1746, declare as follows: 1. Beginning in mid-year 2001, I began working on behalf of the Enssle Family to assist them in the planning and preparation of their property at 1791 Range Street for sale. 2. Around mid-June, 2003, I called Tom Silvers, Director of Corporate Real Estate for Ball Corporation, to discuss a monitoring well upradient of the Enssles' property, and to see if Ball had any interest in buying the Property. Peter Rogers and I both had previous conversations with Scot Smith who was familiar with Ball Corporation as their real estate broker in the past, and who was very familiar with the Enssle property, and knew there were environmental issues at the site.

Case 1:03-cv-01291-MSK-CBS

Document 344-2

Filed 12/11/2005

Page 3 of 4

3. On June 26, 2003, I met with Mr. Silvers at his office. Acting as Plaintiffs' agent, I attended this and other meetings at the request of and together with Peter Rogers, attorney for Plaintiffs, and Scot Smith, now real estate broker for the Plaintiffs. 4. At the June 26 meeting, we spoke that the Plaintiffs wanted to sell the Property, and presented a marketing booklet we had prepared for the Property. All parties present agreed that Ball was a great candidate to buy the property. 5. After ITW moved out of the building on July 31, 2003, there was a site tour showing with Tom Silvers, Scot Smith, various Ball representatives, Burke Enssle and myself. We toured the property and the inside of the building. At this time Tom Silvers spoke about various appraisals and market research studies they had conducted, stating that the property was worth no more than $2 million. He spoke of many deficiencies in the Property and Ball's perspective for the property. 6. Tom Silvers and I discussed the status of our site environmental investigations and plans to clean up the contamination the tenants had left on the property. He stated that Ball would only be interested in the property after the toxic contamination was cleaned up and we obtained a no further action letter from CDPHE. 7. I also attended a meeting on August 9, 2004, with David Hoover, the CEO and Chairman of the Board of Ball Corporation, other Ball representatives, Jon F. Kottke and Peter Rogers, attorneys for Plaintiffs. The meeting was held at Mr. Kottke's office. Mr. Silvers was not at that meeting. 8. Ball representatives gave us an update on a recent Ball campus concept plan they had proposed to the City of Boulder. They also gave us an overview of their overall property
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Case 1:03-cv-01291-MSK-CBS

Document 344-2

Filed 12/11/2005

Page 4 of 4