4.8. SR 08-05-2019 EGty1� ,.,�� Request for Action
River
To Item Number
Mayor and City Council 4.8
Agenda Section Meeting Date Prepared by
Consent August 5, 2019 Cal Portner, City Administrator
Item Description Reviewed by
First Amendment to Settlement Agreement- Dryer Peter Beck, City Attorney
Reviewed by
Jared Shepherd,Legal Counsel
Action Requested
Adopt,by motion, the first amendment to the settlement agreement with John and Elaine Dryer.
Background/Discussion
On July 1, 2019, the City Council approved a settlement agreement with John and Elaine Dryer regarding
a lawsuit they had filed against the City of Elk River and SNL Properties.
We were advised by their representation that their bank cannot complete the loan facility necessary to
close on the property until sometime in August due to a high number of re-financings. They did receive a
financing approval letter last month so the delay is solely on the bank.
Our legal counsel suggested we continue with the right of way removal since it is contingent on a closing
and continue with the boundary adjustment application so it is ready for approval upon closing and have
the closing company complete title work so closing can occur immediately upon the bank's completion of
the loan facility.
The Dryers and SNL Properties have executed this first amendment and are awaiting Council approval.
Financial Impact
N/A
Attachments
■ Amendment
The Elk River Vision
A PehoMing community 2a itb revolutionary and spirited resourcefulness, exceptional POWERED By
service, and community engagement that encourages and inspires prosperity INAMIRE1
STATE OF MINNESOTA
COUNTY OF SHERBURNE
John and Elaine Dryer,
Plaintiffs,
V.
City of Elk River and SNL Island View
Properties, LLC,
Defendants
DISTRICT COURT
TENTH JUDICIAL DISTRICT
Case Type: Quiet Title
Case File No.: 71 -CV -18-705
Judge Mary A. Yunker
FIRST AMENDMENT TO CONTINGENT AGREEMENT
RECITALS
WHEREAS, on December 19, 2017, Plaintiffs John and Elaine Dryer (referred to
hereinafter alternatively as "Plaintiffs" or "Dryers") initiated the above -captioned lawsuit, Case
File No. 71 -CV -18-705 (hereinafter "Lawsuit") against Defendants City of Elk River (hereinafter
"City") and SNL Island View Properties, LLC (hereinafter SNL") (Plaintiffs, the City, and SNL
are hereinafter collectively, "Parties," or individually "Party"); and
WHEREAS, the Parties to the Lawsuit entered into a Contingent Settlement Agreement
dated July 1, 2019 ("Agreement'); and
WHEREAS, the Agreement, in its paragraph seven (7), contemplated several events
which must occur in order to fully and finally settle the Lawsuit and as a prerequisite to the
Parties filing a Stipulation of Dismissal ("Contingencies"); and
WHEREAS, the Contingencies were to be occur by dates certain otherwise the agreement
was to be null and void; and
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WHEREAS, due to circumstances beyond the Parties control, the contingencies did not
occur; and
WHEREAS, the Parties have agreed to settle all potential and existing disputes between
them, including those claims, defenses and allegations in the Lawsuit in accordance with the
terms of the Agreement as amended herein ("Amendment')
NOW, THEREFORE, in consideration of the mutual promises, agreements, and
covenants contained herein, the Parties mutually agree as follows:
1. INCORPORATION. The above recitals are incorporated into this Agreement as
if fully stated herein.
2. CLOSING OF THE SALE PROPERTY. The Closing of the real estate
transaction contemplated in Paragraph 2 and Exhibit A to the Agreement will occur before
September 1, 2019 (hereinafter "Closing").
3. CONTINGENCIES. The Agreement remains a contingent agreement. Paragraph
7 is amended to the extent specifically outlined in this section. The underlined dates now apply
to the contingencies outlined below.
A. A Closing of the Property located at 13008 Island View Drive on or before
September 1. 2019.
D. City Council approval of Boundary Adjustment by September 1. 2019.
4. CONSENT AND ADVICE OF COUNSEL/GOOD FAITH AGREEMENT. All
Parties to this Agreement acknowledge that they know and understand the contents of this
Agreement and this Agreement has been executed voluntarily, in good faith, and without
coercion by any party. Further, this Agreement represents a negotiated settlement to resolve the
Lawsuit on terms agreeable to all Parties. Finally, by their signature below, each Party
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acknowledges that they have been represented by the independent legal counsel of their choice or
each Party has executed this Agreement with the consent and on the advice of such independent
legal counsel.
5. MISCELLANEOUS
A. This Amendment and the Agreement constitute the complete and final
understanding between the parties with regard to the matters set forth herein. All provisions of
the Agreement remain in full force and effect if not expressly altered by the terms of this
Amendment.
B. This Amendment may be executed in one or more counterparts, each of
which will be deemed an original, but all of which will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date last
written below.
Dated: V<.J ` 2019
Dated: 2019
Dated: 2019
PL TIFFS JOHN & ELAINE DRYER
By:
hniryAdV \
By: ebi,,Lj "oti--f
Elaine Dryer
Its:
SNL ISLAND VIEW PROPERTIES, LLC
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acknowledges that they have been represented by the independent legal counsel of their choice or
each Party has executed this Agreement with the consent and on the advice of such independent
legal counsel.
5. MISCELLANEOUS
A. This Amendment and the Agreement constitute the complete and final
understanding between the parties with regard to the matters set forth herein. All provisions of
the Agreement remain in full force and effect if not expressly altered by the terms of this
Amendment.
B. This Amendment may be executed in one or more counterparts, each of
which will be deemed an original, but all of which will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date last
written below.
PLAINTIFFS JOHN & ELAINE DRYER
Dated: 2019 By:
John Dryer
Dated: 2019 By:
Elaine Dryer
SNL ISLAND VIEW PROPERTIES, LLC
Dated: 2019 By:
Its:
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Dated: 2019
CITY OF ELK RIVER
By:
Its: Mayor
By:
Its: City Clerk