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2006 MN Amended Complaint STATE OF MINNESOTA COUNTY OF WRIGHT DISTRICT COURT TENTH JUDICIAL DISTRICT Other Civil- Breach of Contract City of Albertville, Minnesota, Court File No. C9-05-2481 Plaintiff vs. AMENDED COMPLAINT Edin~ Development Corporation, Short, Elliot and Hendrickson, Inc., P10we Engineering, Inc., and E.G. Rud & Sons, Inc. Defendants. Plaintiff, for its complaint against Defendant states: 1. Plaintiff, City of Albertville, is and at all times mentioned herein was a municipal corporation located in Wright County, Minnesota. 2. Defendant, Edina Development Corporation is and at all times mentioned herein was a corporation organized and existing under the laws of the State of Minnesota with its principal offices located at 700 Industry Avenue, in the City of Anoka, in the County of Anoka. 3. Between the time periods of August 9, 2000 through May 30, 2003 at the City of Albertville, Wright County, State of Minnesota, pursuant to the authority of Minnesota Statutes Section 462.358, Subd. 2a, Plaintiff and Defendant Edina Development Corporation ("Edina") entered into seven 1 (7) separate written development contracts setting forth the terms and conditions for the development of certain parcels of land located in the City of Albertville as more fully described below. 4. Each of the development contracts upon which this action is based were each made and were to be performed in the County of Wright, State of Minnesota. 5. Each development contract upon which this action is based provides that the County of Wright is the proper venue for any action arising out of the agreements. 6. Each of the development contracts upon which this action is based provides for an award of the City's reasonable attorneys' fees in any dispute arising out of the development contracts. 7. The consideration set forth in each of the development contracts was fair and reasonable. 8. Plaintiff has performed all conditions, covenants, and promises required by it to be performed in accordance with the terms and conditions of the various development contracts. 9. Defendant has breached the terms of the various development contracts as outlined below by failing and refusing to perform in good faith their promise to pay all of Plaintiff s costs and expenses related to the creation, administration, enforcement or execution of the various development 2 contracts and related plats, by failing or refusing to perform in good faith their promise to comply with the performance requirements of the various agreements, and by failing or refusing to comply with applicable portions of the Minnesota Wetland Conservation Act. COUNT I ALBERTVILLASPLAT 10. Plaintiff realleges and incorporates by reference each and every allegation contained in paragraphs 1 through 9 above. 11. On or about August 11, 2000, in the City of Albertville, County of Wright, State of Minnesota, Plaintiff and Defendant entered into a written contract entitled "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villa's", a copy of which is attached hereto as Exhibit "A" and made a part hereof. 12. Pursuant to Sections 2D and 8 of said development contract, Defendant agreed to pay all of Plaintiffs costs and expenses related to the creation, administration, enforcement or execution of the development contract and related plat. Specifically, Section 8 states as follows: Developer to Pay City's Costs and Expenses. It is understood and agreed that the Developer will reimburse the City for all reasonable administrative, legal, planning, engineering and other professional costs incurred in the creation, administration, enforcement or execution of this Agreement and the approval 3 of Said Plan, as well as all reasonable engineering expenses incurred by the City in designing, approving, installing, and inspecting said Improvements described above. Developer agrees to pay all such costs within 30 days of billing by the City. If Developer fails to pay said amounts, then the City may specially assess such costs against the lots within Said Plat. Developer knowingly and voluntarily waives all rights to appeal said special assessments under Minnesota Statues Section 429.081. Developer has the right to request time sheets or work records to verify said billing prior to payment. 13. Pursuant to Section 13H of said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villa's" (Exhibit A), Defendant agreed to follow all water, ponding and wetland related restrictions as required under the terms of the City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas (Exhibit A). Section 13H states as follows: Developer shall comply with all water, ponding and wetland related restrictions, if any, required by the City of Albertville and/or any applicable provisions of State and Federal law. 14. Plaintiff, by certified letter dated June 15, 2004, defaulted Defendant on the Agreement (Exhibit A) due to Defendant's failure to pay the reasonable engineering costs which Plaintiff had incurred in the creation, administration, enforcement and execution of the development contract and the approval of the development of Defendant's lands. In this letter, Defendant was reminded that Plaintiff had previously requested payment of such expenses and that 4 Plaintiff had provided Defendant with a worksheet and detailed invoices outlining the costs. A true and correct copy of said letter is attached hereto as Exhibit "B" and incorporated herein by reference. 15. Plaintiff, by letter dated July 29,2004, again notified Defendant that Plaintiff had not been reimbursed by Defendant for all reasonable engineering costs incurred in the creation, administration, enforcement or execution of the development contract and the approval of the development of Defendant's lands, and that Defendant had failed to pay Plaintiff s costs and expenses related to the creation, administration, enforcement or execution of the various development contracts and related plats. A true and correct copy of said letter is attached hereto as Exhibit "C" and made a part hereof. 16. Plaintiff, by letter dated April 5, 2005, again defaulted Defendant and provided detailed information relating to the amounts owed by Defendant for various developments which occurred within the City of Albertville for which Defendant was obligated to reimburse Plaintiff for its costs and expenses. Defendant was also provided detailed information regarding Defendant's failure to comply with wetland mitigation plans and failure . to sign the wetland maintenance agreement. A true and correct copy of said letter is attached hereto and made a part hereof as Exhibit "D." 17. Pursuant to Sections 2D and 8 of the "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villa's" (Exhibit A) and by letter dated April 5, 2005, Exhibit C, Defendant was formally notified 5 by Plaintiff that Plaintiff considered Defendant to be in default of the "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villa's" (Exhibit A). 18. Pursuant to Section 21 of said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villa's," (Exhibit A) Defendant agreed to pay all of the professional fees incurred by Plaintiff as a result of Plaintiffs efforts to enforce the terms of the Agreement. Specifically, Section 21 states as follows: Professional Fees. The Developer will pay all reasonable professional fees incurred by the City as a result of City efforts to enforce the terms of this Agreement. Said fees include attorney's fees, engineer's fees, planner's fees, and any other professional fees incurred by the City in attempting to enforce the terms of this Agreement. The Developer will also pay all reasonable attorney's and professional fees incurred by the City in the event an action is brought upon a letter of credit or other surety furnished by the Developer as provided herein. 19. Defendant requested timesheets and invoices pursuant to Section 8 of the Agreement. Plaintiff provided Defendant with reasonable documentation to justify the billings, as requested. 20. On or about July 15, 2004, Defendant breached said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villa's," (Exhibit A) by failing to reimburse the Plaintiff for all reasonable engineering costs incurred in the creation, administration, enforcement or 6 execution of the contract and the approval of the development of defendant's lands within 30 days of billing by the City. As such, demand has been made on Defendant for reimbursement of fees expended on Defendant's behalf but Defendant has failed and refused and continues to fail and refuse, to repay the sum owed to Plaintiff. 21. By reason of Defendant's breach of said development contract as herein alleged, the Plaintiff has suffered damages in the sum of $31,455.07 for costs associated with reasonable professional engineering services, $125.00 for costs associated with the City's reasonable costs for weed removal, $207.00 for costs associated with the City's reasonable costs for professional engineering services related to wetland mitigations issues, $130.50 for costs associated with the City's reasonable costs of professional planning services related to a sign issues and $140.00 for costs associated with the City's reasonable cost for professional engineering services related to lot problems (aerials), all of which are now due, owing, and unpaid plus interest at the legal rate from and after the date due according to proof. 22. By reason of the aforementioned breach of the defendant, the Plaintiff has been forced to secure the services of the legal firm of Couri, MacArthur & Ruppe, P .L.L.P. to prosecute this lawsuit. 7 COUNT II ALBERTVILLAS SECOND ADDITION PLAT 23. Plaintiff realleges and incorporates by reference each and every allegation contained in paragraphs I through 9 above. 24. On or about October 9,2000, in the City of Albertville, County of Wright, State of Minnesota, Plaintiff and Defendant entered into a written agreement entitled "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Second Addition" a copy of which is attached hereto as Exhibit "E" and made a part hereof. This development contract incorporated by reference and supplemented the "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villa's" which is attached as Exhibit A. 25. By the terms of Sections 2D and 8 of the "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villa's Second Addition." (Exhibit E) Defendant agreed to pay all of Plaintiffs Costs and Expenses related to the creation, administration, enforcement or execution of the contract and related plat. Specifically, Section II states: Developer to Pay City's Costs and Expenses. It is understood and agreed that the Developer will reimburse the City for all reasonable administrative, legal, planning, engineering and other professional costs incurred in the creation, administration, enforcement or execution of this Agreement and the approval of Said Plan, as well as all reasonable engineering expenses incurred by the City in designing, approving, installing, and inspecting said Improvements described above. Developer 8 agrees to pay all such costs within 30 days of billing by the City. If Developer fails to pay said amounts, then the City may specially assess such costs against the lots within Said Plat. Developer knowingly and voluntarily waives all rights to appeal said special assessments under Minnesota Statues Section 429.081. Developer has the right to request time sheets or work records to verify said billing prior to payment. 26. By terms of Section 13H of said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villa's Second Addition" (Exhibit E), Defendant agreed to follow all water, ponding and wetland. related restrictions and to sign the wetland maintenance agreement as required by the wetland mitigation plan ("Exhibit E"). Section 13H states as follows: Developer shall comply with all water, ponding and wetland related restrictions, if any, required by the City of Albertville and/or any applicable provisions of State and Federal law. 27. By terms of Section 21 of said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villa's Second Addition" (Exhibit E), Defendant agreed to pay all of the professional fees incurred by Plaintiff. Section 21 states as follows: Professional Fees. The Developer will pay all reasonable professional fees incurred by the City as a result of City efforts to enforce the terms of this Agreement. Said fees include attorney's fees, engineer's fees, planner's fees, and any other professional fees incurred by the City in attempting to enforce the terms of this Agreement. The Developer will also pay all reasonable attorney's and professional fees incurred by the City 9 in the event an action is brought upon a letter of credit or other surety furnished by the Developer as provided herein. 28. Plaintiff, by certified letter dated June 15, 2004, defaulted Defendant on the Agreement (Exhibit E) due to Defendant's failure to pay the reasonable administrative, legal, planning, engineering and other professional costs which Plaintiff had incurred in the creation, administration, enforcement and execution of the development contract and the approval of the development of Defendant's lands. In this letter, Defendant was reminded that Plaintiff had previously requested payment of such expenses and that Plaintiff had provided Defendant with a worksheet and detailed invoices outlining the costs. 29. Plaintiff, by letter dated July 29, 2004, Exhibit C, notified Defendant that Plaintiff had not been reimbursed by Defendant for all reasonable engineering costs incurred in the creation, administration, enforcement or execution of the development contract and the approval of development of Defendant's lands, that Defendant had failed to pay Plaintiff s costs and expenses related to the creation, administration, enforcement or execution of the "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Second Addition" Exhibit E, and the approval of the development of Defendant's lands. 30. Plaintiff, by letter dated April 5,2005, Exhibit D, again defaulted Defendant and provide detailed information relating to the amounts owed by Defendant 10 for. various developments which occurred within the City of Albertville for which Defendant was obligated to reimburse Plaintiff for its costs and expenses. Defendant also provided detailed information regarding Plaintiffs failure to comply with wetland mitigation plans and failure to sign the wetland maintenance agreement. 31. Defendant requested timesheets and invoices pursuant to Section 8 of the Agreement. Plaintiff provided Defendant with reasonable documentation to justify the billings, as requested. 32. Pursuant to Sections 2D and 8 of the "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas," (Exhibit A) by certified letter dated June 15, 2004, Defendant was formally notified by Plaintiff that Plaintiff considered Defendant to be in default of the various development contracts. 33. On or about July 15,2004, Defendant breached the said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Second Addition," (Exhibit E) by failing to reimburse the Plaintiff for all reasonable administrative, legal,. planning, engineering and other professional costs incurred in the creation, administration, enforcement or execution of the contract and the approval of the development of defendant's lands within 30 days of billing by the City. As such, demand has been made on Defendant for reimbursement of fees expended on Defendant's behalf but 11 Defendant has failed and refused and continues to fail and refuse, to repay the sum owed to Plaintiff. 34. By reason of Defendant's breach of said development contract as herein alleged, the Plaintiff has suffered damages in the sum of $61,085.16 which is now due, owing, and unpaid plus interest at the legal rate from and after the date due according to proof. 35. By reason of the aforementioned breach of the defendant, the Plaintiff has been forced to secure the services of the legal firm of Couri, MacArthur & Ruppe, P .L.L.P. to prosecute this lawsuit. COUNT III ALBERTVILLAS THIRD ADDITION PLAT 36. Plaintiff realleges and incorporates by reference each and every allegation contained in paragraphs 1 through 9 above. 37. On or about April 6, 2001, in the City of Albertville, County of Wright, State of Minnesota, Plaintiff and Defendant entered into a written agreement entitled "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Third Addition" a copy of which is attached hereto as Exhibit "F" and made a part hereof. This development contract incorporated by reference and supplemented the "City of 12 Albertville Conditional Use/Planned Unit Development Agreement Albert Villas" which is attached as Exhibit A. 38. By the terms of Sections 2D and 8 of the "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Third Addition." (Exhibit F) Defendant agreed to pay all of Plaintiff s Costs and Expenses related to the creation, administration, enforcement or execution of the development contract and related plat. Section 8 states: Developer to Pay City's Costs and Expenses. It is understood and agreed that the Developer will reimburse the City for all reasonable administrative, legal, planning, engineering and other professional costs incurred in the creation, administration, enforcement or execution of this Agreement and the approval of Said Plan, as well as all reasonable engineering expenses incurred by the City in designing, approving, installing, and inspecting said Improvements described above. Developer agrees to pay all such costs within 30 days of billing by the City. If Developer fails to pay said amounts, then the City may specially assess such costs against the lots within Said Plat. Developer knowingly and voluntarily waives all rights to appeal said special assessments under Minnesota Statues Section 429.081. Developer has the right to request time sheets or work records to verify said billing prior to payment. 39. By terms of Section 21 of said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villa's Third Addition" (Exhibit F), Defendant agreed to pay all of the professional fees incurred by Plaintiff as a result of Plaintiff s efforts to enforce the terms of the Agreement. Specifically, Section 21 states as follows: Professional Fees. The Developer will pay all reasonable professional fees incurred by the City as a result of City efforts to enforce the terms of this Agreement. Said fees include attorney's fees, engineer's fees, 13 planner's fees, and any other professional fees incurred by the City in attempting to enforce the terms of this Agreement. The Developer will also pay all reasonable attorney's and professional fees incurred by the City in the event an action is brought upon a letter of credit or other surety furnished by the Developer as provided herein. 40. By terms of Sections 10 of said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Third Addition," (Exhibit F) Defendant agreed to comply with all requirements set forth in Exhibit F regarding maintenance of county or any other ditches through which water from Defendant's Property may drain. Sections 10 states as follows: Drainage Requirements. Developer shall comply with all requirements set forth for drainage into any county ditch or other ditch through which water from Subject Property may drain, and shall make any necessary improvements or go through any necessary procedures to ensure compliance with any federal, state, county or city requirements, all at Developer's expense. 41. Defendant has failed to clean such portions of County Ditch No.9 which located on Defendant's property, thereby breaching the Agreement (Exhibit F) with respect to Section 10 of said Agreement. 42. By terms of Sections 2A and 2B of said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Third Addition," (Exhibit F) Defendant agreed to construct municipal improvement on and off the Defendant's property as detailed in the plans and specifications prepared by E.G. Rud & Sons, Inc. dated October 20,2000. Sections 2A and 2B states as follows: Construction of Municipal Improvements. 14 A. The Developer shall construct those Municipal Improvements located on and off Said Plat as detailed in the Plans and Specifications for Albertvillas, as prepared by E.G. Rud & Sons, Inc. dated October 20, 2000 and on file with the City Clerk, said improvements to .include installation of bituminous street, curb and gutter, water mains, sanitary and storm sewers, storm water ponding and site grading. All such improvements shall be constructed according to the standards adopted by the City, along with all items required by the City Engineer. Unless the City Engineer specifies a later date, said improvements shall be installed by October 31, 200 I, with the wear course of bituminous pavement to be installed after May 15,2002, but before June 30,2002. B. The Developer warrants to the City for a period of two years from the date the City accepts the finished Municipal Improvements that all such improvements have been constructed to City standards and shall suffer no significant impairments, either to the structure or to the surface or other usable areas due to improper construction, said warranty to apply both to poor materials and faulty workmanship. 43. Defendant has failed to flatten slopes at outlet ditch of structure south of Kalie Street and parallel to Kagan Street, failed to install sidewalk and curb replacement and failed to saw and seal curb and failed to remove fabric from catch basins in such locations as are on Defendant's Property and has thereby breached Sections 2A and 2B of said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Third Addition," (Exhibit F). 44. By terms of Section 1 C of said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Third Addition," (Exhibit F) defendant has failed to construct side walks and trails in locations specified in . Exhibit F and therefore breached said Agreement (Exhibit F). Section 1 C states as follows: 15 Developer shall, at its own expense, construct sidewalks and trails in the locations shown in the attached Exhibit B. 45. By terms of Section 11 of said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Third Addition," (Exhibit F) Defendant agreed to comply with all requirements set forth in Exhibit F regarding damages to and cleaning of county or any other ditches through which water from Defendant's Property may drain. Section 11 states as follows: Maintain Public Property Damaged or Cluttered During Construction. Developer agrees to assume full fmancial responsibility for any damage which may occur to public property including but not limited to streets, street sub- base, base, bituminous surface, curb, utility system including but not limited to watermain, sanitary sewer or storm sewer when said damage occurs as a result of the activity. which takes place during the development of Said Plat. The Developer further agrees to pay all costs required to repair the streets, utility systems and other public property damaged or cluttered with debris when occurring as a direct or indirect result of the construction that takes place in Said Plat. Developer agrees to clean the streets on a daily basis if required by the City. Developer further agrees that any damage to public property occurring as a result of construction activity on Said Plat will be repaired immediately if deemed to be an emergency by the City. Developer further agrees that any damage to public property as a result of construction activity on Said Plat will be repaired within 14 days if not deemed to be an emergency by the City. If Developer fails to so clean the streets or repair or maintain said public property, the City may undertake making or causing it to be cleaned up, repaired or maintained. When the City undertakes such activity, the Developer shall reimburse the City for all of its expenses within thirty (30) days of its billing to the Developer. 16 If the Developer fails to pay said bill within thirty (30) days, then the City may specially assess such costs against the lots within Said Plat and/or take necessary legal action to recover such costs and the Developer agrees that the City shall be entitled to attorneys fees incurred by the City as a result of such legal action. Developer . knowingly and voluntarily waives all rights to appeal said special assessments under Minnesota Statutes section 429.081. 46. Defendant has failed to clean and maintain County Ditch No.9 in such locations as are on Defendant's Property and has thereby breached Section 11 of "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Third Addition," (Exhibit F). 47. By terms of Section 13H of said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villa's Third Addition" (Exhibit F), Defendant agreed to follow all water, ponding and wetland related restrictions and to sign the wetland maintenance agreement as required by the wetland mitigation plan. Section 13H states as follows: Developer shall comply with all water, ponding and wetland related restrictions, if any, required by the City of Albertville and/or any applicable provisions of State and Federal law. 48. Defendant has failed to comply with the wetland mitigation plan and failed to sign the wetland maintenance agreement thereby breaching Section 13H of "City of Albertville Conditional UseIPlanned Unit Development Agreement Albert Villas Third Addition," (Exhibit F). 49. Plaintiff, by letter dated April 5, 2005, agam defaulted Defendant and provided detailed information relating to the amounts owed by Defendant for 17 various developments which occurred within the City of Albertville for which Defendant was obligated to reimburse Plaintiff for its costs and expenses. Defendant was also provided detailed information regarding Defendant's failure to comply with wetland mitigation plans and failure to sign the wetland maintenance agreement. 50. Plaintiff, by certified letter dated June 15, 2004, defaulted Defendant on the Agreement (Exhibit A) due to Defendant's failure to pay the reasonable engineering costs which Plaintiff had incurred in the creation, administration, enforcement and execution of the development contract and the approval of the development of Defendant's lands. In this letter, Defendant was reminded that Plaintiff had previously requested payment of such expenses and that Plaintiff had provided Defendant with a worksheet and detailed invoices outlining the costs. 51. Plaintiff, by letter dated July 29, 2004, notified Defendant that Plaintiff had not been reimbursed by Defendant for all reasonable engineering and planning costs incurred in the creation, administration, enforcement or execution of the "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Third Addition," Exhibit F, and the approval of the development of Defendant's lands. 52. Defendant requested time sheets and invoices pursuant to Section 8 of the Agreement. Plaintiff provided Defendant with reasonable documentation to justify the billings, as requested. 18 53. Pursuant to Sections 2D and 8 of the "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas," (Exhibit A) by certified letter dated June 15, 2004, Defendant was formally notified by Plaintiff that Plaintiff considered Defendant to be in default of the various development contracts. 54. On or about July 15,2004, Defendant breached the said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Third Addition," (Exhibit F) by failing to reimburse the Plaintiff for all reasonable engineering and planning costs incurred in the creation, administration, enforcement or execution of the contract and the approval of the development of defendant's lands within 30 days of billing by the City. As such, demand has been made on Defendant for reimbursement of fees expended on Defendant's behalf but Defendant has failed and refused and continues to fail and refuse, to repay the sum owed to Plaintiff. 55. Plaintiff, by letter dated April 5, 2005, Exhibit D, provided Defendant with detailed information relating to breaches Defendant made to the said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Third Addition," (Exhibit F) and as to the amounts owed by Defendant for various developments which occurred within the City of Albertville for which Defendant was obligated to reimburse Plaintiff for its costs and expenses. 19 56. By reason of Defendant's breach of said development contract as herein alleged, the Plaintiff has suffered damages in the sum of $76,790.63 for failure to pay the City's reasonable cost for professional engineering services and $3017.80 for failure to pay the City's reasonable costs for planning services, both of which are now due, owing, and unpaid plus interest at the legal rate from and after the date due according to proof. 57. By reason of the aforementioned breach of the defendant, the Plaintiff has been forced to secure the services of the legal firm of Couri, MacArthur & Ruppe, P .L.L.P. to prosecute this lawsuit. COUNT IV ALBERTVILLAS FOURTH ADDITION PLAT 58. Plaintiff realleges and incorporates by reference each and every allegation contained in paragraphs 1 through 9 above. 59. On or about April 1 , 2002, in the City of Albertville, County of Wright, State of Minnesota, Plaintiff and Defendant entered into a written agreement entitled "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Fourth Addition" a copy of which is attached hereto as Exhibit "G" and made a part hereof. This development contract incorporated by reference and supplemented the "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas" which is attached as Exhibit A. 20 60. By the terms of Sections 2D and 8 of the "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Fourth Addition." (Exhibit G) Defendant agreed to pay all of Plaintiffs Costs and Expenses related to the creation, administration, enforcement or execution of the development contract and related plat. Specifically, Section 8 states: Developer to Pay City's Costs and Expenses. It is understood and agreed that the Developer will reimburse the City for all reasonable administrative, legal, planning, engineering and other professional costs incurred in the creation, administration, enforcement or execution of this Agreement and the approval of Said Plan, as well as all reasonable engineering expenses incurred by the City in designing, approving, installing, and inspecting said Improvements described above. Developer agrees to pay all such costs within 30 days of billing by the City. If Developer fails to pay said amounts, then the City may specially assess such costs against the lots within Said Plat. Developer knowingly and voluntarily waives all rights to appeal said special assessments under Minnesota Statues Section 429.081. Developer has the right to request time sheets or work records to verify said billing prior to payment. 61. Pursuant to Section 21 of said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villa's Fourth Addition", (Exhibit G), Defendant agreed to pay all of the professional fees incurred by Plaintiff as a result of Plaintiff s efforts to enforce the terms of the Agreement. Specifically, Section 21 states as follows: Professional Fees. The Developer will pay all reasonable professional fees incurred by the City as a result of City efforts to enforce the terms of this Agreement. Said fees include attorney's fees, engineer's fees, planner's fees, and any other professional fees incurred by the City in attempting to enforce the terms of this Agreement. The Developer will also pay all 21. reasonable attorney's and professional fees incurred by the City in the event an action is brought upon a letter of credit or other surety furnished by the Developer as provided herein. 62. By terms of Sections 2A and 2B of said "City of Albertville Conditional Use/Planned unit Development Agreement Albert Villas Fourth Addition," (Exhibit G) Defendant agreed to construct municipal improvements on and off the Defendant's property as detailed in the plans and specifications prepared by Plowe Engineering dated August 14, 2001. Sections 2A and 2B state as follows: Construction of Municipal Improvements. A. The Developer shall construct those Municipal Improvements located on and off Said Plat as detailed in the Plans and Specifications for Albert Villas Fourth Addition, as prepared by Plowe Engineering, Inc. dated August 14, 2001 and on file with the City Clerk, said improvements to include installation of bituminous street, curb and gutter, water mains, sanitary and storm sewers, storm water ponding and site grading. All such improvements shall be constructed according to the standards adopted by the City, along with all items required by the City Engineer. Unless the City Engineer specifies a later date, said improvements shall be installed by October 31, 2002, with the wear course of bituminous pavement to be installed after May 15,2003, but before June 30, 2003. B. The Developer warrants to the City for a period of two years from the date the City accepts the fmished Municipal Improvements that all such improvements have been constructed to City standards and shall suffer no significant impairments, either to the structure or to the surface or other usable areas due to improper construction, said warranty to apply both to poor materials and faulty workmanship. 63. Defendant has failed to remove fabric from catch basins, failed to install band to flared end of apron at County Ditch No.9, failed to 22 clean sediment from drainage ponds and failed to install sidewalk and curb replacement and to saw and seal curb in such locations as are on Defendant's Property and has thereby violated Sections 2A and2B of "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Fourth Addition dated April 1, 2002" (Exhibit G). 64. By terms of Section 1D of said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Fourth Addition" (Exhibit G) Defendant agreed to'install sidewalks and curbs on Defendant's property. Section ID states as follows: Developer shall, at its own expense, construct sidewalks in the locations shown in the attached Exhibit D at the time of road construction. 65. Defendant has failed to install sidewalk and curb replacement and failed to saw and seal curb in such locations as are on Defendant's Property and has thereby violated Sections ID of "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Fourth Addition dated April 1, 2002" (Exhibit G). 66. By terms of Section 3F of said "City of Albertville Conditional Use/P1anned Unit Development Agreement Albert Villas Fourth Addition," (Exhibit G) Defendant agreed to install storm water retention/water quality ponds and basins on Defendant's property. Section 3F states as follows: 23 Developer shall install storm water retention/water quality ponds and basins upon Said Plat as shown on the Grading, Drainage and Erosion Control Plan attached as Exhibit F. Said ponds and basins shall be dedicated to the City, and Developer shall provide the City with perpetual drainage easements over such ponds. Said retention ponds and basins shall be installed prior to the installation of utilities. 67. Defendant has failed to clean sediment from drainage ponds in such locations as are on Defendant's Property and has thereby violated Sections 3F "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Fourth Addition dated April 1, 2002 (Exhibit G). 68. By terms of Sections 10 and 11 of said "City of Albertville Conditional Use/Planned unit Development Agreement Albert Villas Fourth Addition," (Exhibit G) Defendant agreed to comply with all requirements set forth in Exhibit F regarding damages to and cleaning of county or any other ditches through which water from Defendant's Property may drain. Sections 10 and 11 states as follows: 10. Drainage Requirements. Developer shall comply with all requirements set forth for drainage into any county ditch or other ditch through which water from Subject Property may drain, and shall make any necessary improvements or go through any necessary procedures to ensure compliance with any federal, state, county or city requirements, all at Developer's expense. 11. Maintain Public Property Damaged or Cluttered During Construction. 24 Developer agrees to assume full financial responsibility for any damage which may occur to public property including but not limited to streets, street sub- base, base, bituminous surface, curb, utility system including but not limited to watermain, sanitary sewer or storm sewer when said damage occurs as a result of the activity which takes place during the development of Said Plat. The Developer further agrees to pay all costs required to repair the streets, utility systems and other public property damaged or cluttered with debris when occurring as a direct or indirect result of the construction that takes place in Said Plat. Developer agrees to clean the streets on a daily basis if required by the City. Developer further agrees that any damage to public property occurring as a result of construction activity on Said Plat will be repaired immediately if deemed to be an emergency by the City. Developer further agrees that any damage to public property as a result of construction activity on Said Plat will be repaired within 14 days if not deemed to be an emergency by the City. If Developer fails to so clean the streets or repair or maintain said public property, the City may undertake making or causing it to be cleaned up, repaired or maintained. When the City undertakes such activity, the Developer shall reimburse the City for all of its expenses within thirty (30) days of its billing to the Developer. If the Developer fails to pay said bill within thirty (30) days, then the City may specially assess such costs against the lots within Said Plat and/or take necessary legal action to recover such costs and the Developer agrees that the City shall be entitled to attorneys fees incurred by the City as a result of such legal action. Developer knowingly and voluntarily waives all rights to appeal said special assessments under Minnesota Statutes section 429.081. 69. Defendant has failed to remove construction debris and washout material in County Ditch No.9 at 49th Street in such locations as are on Defendant's Property and has thereby violated Sections 10 and 11 of "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Fourth Addition dated April 1, 2002" (Exhibit G). 25 70. By terms of Section 13H of said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villa's Fourth Addition" I I (Exhibit G), Defendant agreed to follpw all water, ponding and wetland I related restrictions and to sign the {vetland maintenance agreement as I i required by the wetland mitigation pia, ("Exhibit G"). Section 13H states I I as follows: I I I I I Developer shall comply with a~l water, ponding and wetland related restrictions, if any, required by e City of Albertville, Wright County Soil and Water District and/or y applicable provisions of State and Federal law. I I i 71. Defendant has failed to sign the wet1an~ maintenance agreement and i failed to comply with the wetland mitigation plan as required by I . Sections 13H of "City of Albertville qonditional Use/Planned Unit I I Development Agreement Albert Villas ~ourth Addition dated April 1, I 2002 (Exhibit G), thereby violating said ~greement. i I I 72. Defendant requested time sheets and inyoices pursuant to Section 8 ! I of the Agreement. Plaintiff provided I Defendant with reasonable I I documentation to justify the billings, as requested. I 73. Plaintiff, by certified letter dated June 1~, 2004, defaulted Defendant I on the Agreement (Exhibit A) due to qefendant's failure to pay the I reasonable engineering costs which P~aintiff had incurred in the creation, administration, enforcement and execution of the 26 development contract and the approval of the development of Defendant's lands. In this letter, Defendant was reminded that Plaintiff had previously requested payment of such expenses and that Plaintiff had provided Defendant with a worksheet and detailed invoices outlining the costs. 74. On or about July 15, 2004, Defendant breached the said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Fourth Addition" (Exhibit G), by failing to reimburse the Plaintiff for all reasonable engineering costs incurred in the creation, administration, enforcement or execution of the contract and the approval of the development of defendant's lands within 30 days of billing by the City. As such, demand has been made on Defendant for reimbursement of fees expended on Defendant's behalf but Defendant has failed and refused and continues to fail and refuse, to repay the sum owed to Plaintiff. 75. Pursuant to Sections 2D and 8 of the "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Fourth Addition", (Exhibit G), Defendant was again notified by Plaintiff by certified letter dated July 29,2004 that Plaintiff considered Defendant to be in default of the various development contracts. 76. Plaintiff, by letter dated April 5, 2005, Exhibit D, provided Defendant with detailed information relating to the amounts owed by Defendant for various 27 developments which occurred within the City of Albertville for which Defendant was obligated to reimburse Plaintiff for its costs and expenses. 77. By reason of Defendant's breach of said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Fourth Addition", (Exhibit G), development contract as herein alleged, the Plaintiff has suffered damages in the sum of $94,165.69 which is now due, owing, and unpaid plus interest at the legal rate from and after the date due according to proof. 78. By reason of the aforementioned breach of the defendant, the Plaintiff has been forced to secure the services of the legal fIrm of Couri, MacArthur & Ruppe, P .L.L.P. to prosecute this lawsuit. COUNT V ALBERTVILLAS SIXTH ADDITION PLAT 79. Plaintiff realleges and incorporates by reference each and every allegation contained in paragraphs 1 through 9 above. 80. On or about May 30,2003, in the City of Albertville, County of Wright, State of Minnesota, Plaintiff and Defendant entered into a written agreement entitled "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Sixth Addition" a copy of which is attached hereto as Exhibit "H" and made a part hereof. This development contract incorporated by reference and supplemented the "City of 28 Albertville Conditional Use/Planned Unit Development Agreement Albert Villas" which is attached as Exhibit A. 81. By the terms of Sections 2D and 8 of the "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Sixth Addition." (Exhibit H) Defendant agreed to pay all of Plaintiff s Costs and Expenses related to the creation, administration, enforcement or execution of the development contract and related plat. Specifically, Section 8 states as follows: Developer to Pay City's Costs and Expenses. It is understood and agreed that the Developer will reimburse the City for all reasonable administrative, legal, planning, engineering and other professional costs incurred in the creation, administration, enforcement or execution of this Agreement and the approval of Said Plan, as well as all reasonable engineering expenses incurred by the City in designing, approving, installing, and inspecting said Improvements described above. Developer agrees to pay all such costs within 30 days of billing by the City. .IfDeveloper fails to pay said amounts, then the City may specially assess such costs against the lots within Said Plat. Developer knowingly and voluntarily waives all rights to appeal said special assessments under Minnesota Statues Section 429.081. Developer has the right to request time sheets or work records to verify said billing prior to payment. 82. Pursuant to Section 21 of said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villa's Sixth Addition" (Exhibit H), Defendant agreed to pay all of the professional fees incurred by Plaintiff as a result of Plaintiff s efforts to enforce the terms of the Agreement. Specifically, Section 21 states as follows: 29 Professional Fees. The Developer will pay all reasonable professional fees incurred by the City as a result of City efforts to enforce the terms of this Agreement. Said fees include attorney's fees, engineer's fees, planner's fees, and any other professional fees incurred by the City in attempting to enforce the terms of this Agreement. The Developer will also pay all reasonable attorney's and professional fees incurred by the City in the event an action is brought upon a letter of credit or other surety furnished by the Developer as provided herein. 83. By terms of Sections lA, 1C, 2A, and 2C of said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Sixth Addition," (Exhibit H) Defendant agreed to construct and maintain the storm sewer system on Defendant's property as detailed in the plans and specifications prepared by Plowe Engineering dated August 14,2001 (Exhibit H). Sections lA, 1 C, 2A and 2C state as follows: 1 A. All grading, drainage, utility, wetland mitigation, and transportation issues that arise during development of Said Plat shall be subject to review and approval by the City Engineer. 1 C. Developer shall at its own expense, construct sidewalks in the locations shown in the attached Exhibit C, C-1, and C-2 at the time of road construction. 2 A. The Developer shall construct those Municipal Improvements located on and off Said Plat as detailed in the Plans and Specifications for Albert Villas Fourth Addition, as prepared by Plowe Engineering, Inc. dated August 14, 2001 and on file with the City Clerk, said improvements to include installation of bituminous street, curb and gutter, water mains, sanitary and storm sewers, storm water ponding and site grading. All such improvements shall be constructed according to the standards adopted by the City, along with all items required by the City Engineer. Unless the City Engineer specifies a later date, said improvements shall be installed by October 31, 2002, with the wear course of bituminous 30 pavement to be installed after May 15, 2003, but before June 30,2003. 2 C. The Developer warrants to the City for a period of two years from the date the City accepts the finished Municipal Improvements that all such improvements have been constructed to City standards and shall suffer no significant impairments, either to the structure or to the surface or other usable areas due to improper construction, said warranty to apply both to poor materials and faulty workmanship. 31 84. Defendant has failed to clean the storm water sewer in such locations as are on Defendant's Property and has thereby violated Sections lA, 2A, and 2C of "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Sixth Addition dated May 30, 2003 (Exhibit H). 85. By terms of Sections 2C, 10, 11 of said "City of Albertville Conditional Use/Planned unit Development Agreement Albert Villas Sixth Addition," (Exhibit H) Defendant agreed to comply with all requirements set forth in Exhibit H regarding damages to and cleaning of county or any other ditches through which water from Defendant's Property may drain and to remove structures over said county ditches. Section 2C reads as stated herein and Sections 10 and 11 state as follows: 10. Drainage Requirements. Developer shall comply with all requirements set forth for drainage into any county ditch or other ditch through which water from Subject Property may drain, and shall make any necessary improvements or go through any necessary procedures to ensure compliance with any federal, state, county or city requirements, all at Developer's expense. 11. Maintain Public Property Damaged or Cluttered During Construction. Developer agrees to assume full fmancial responsibility for any damage which may occur to public property including but not limited to streets, street sub- base, base, bituminous surface, curb, utility system including but not limited to watermain, sanitary sewer or storm sewer when said damage occurs as a result of the activity which takes place during the development of Said Plat. The Developer further agrees to pay all costs required to repair the streets, utility systems and other public property damaged or cluttered with debris when occurring as a direct or indirect result of the construction that takes place in Said Plat. Developer agrees to clean the streets on a daily basis if required by the City. Developer further agrees that any damage to public property occurring as a result of construction activity on Said Plat will be repaired immediately if deemed to be an emergency by the City. Developer further agrees that any damage to public property as a result of construction activity on Said Plat will be repaired within 14 days if not deemed to be an emergency by the City. If Developer fails to so clean the streets or repair or maintain said public property, the City may undertake making or causing it to be cleaned up, repaired or maintained. When the City undertakes such activity, the Developer shall reimburse the City for all of its expenses within thirty (30) days of its billing to the Developer. If the Developer fails to pay said bill within thirty (30) days, then the City may specially assess such costs against the lots within Said Plat and/or take necessary legal action to recover such costs and the Developer agrees that the City shall be entitled to attorneys fees incurred by the City as a result of such legal action. Developer knowingly and voluntarily waives all rights to appeal said special assessments under Minnesota Statutes section 429.081. 86. Defendant has failed to repair the top section on the gate valve box at hydrant located at Lot 25, Block 7, failed to re-grade the storm water 32 pond to stabilize slopes in vicinity of storm sewer outlets, failed to restore major washouts at entrance culverts, failed to remove the fabric from catch basins, failed to clean County Ditch No.9 and failed to remove the concrete bridge structure of Count Ditch No.9 near Albert Villas Park in such locations as are on Defendant's Property and has thereby violated Sections 2C, 10 and 11 of "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Sixth Addition dated May 30, 2003 (Exhibit H). 87. By terms of Section 3A of said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villa's Sixth Addition" (Exhibit H), Defendant agreed to construct all on and off site improvements, including but not limited, construction of turf for areas disturbed by installation of drain tile lines. Section 3A reads as follows: Developer shall construct all on- and off-site improvements including installation of paved streets, curb and gutter, boulevards, street signs, traffic signs, yard top soil, sod and seed in all yards, grading control per lot, bituminous or concrete driveways and parking lots, drainage swales, berming, and like items as necessary, street cleanup during project development, and erosion control, all as required by City ordinance. Front, side and portions of the back yards of residential lots shall be sodded in accordance with the Residential Development Standards as on file with the City Administrator's Office. Those portions of the yards not required to be sodded may be seeded with grass seed or sodded. In all cases permanent turf or grass must be . established over all areas of the lot not covered by a hard or impervious surface. The Developer shall guarantee that all new p1antings shall survive for two full years from the time the planting has been completed or will be replaced at the expense of the Developer. 33 Said on- and off-site improvements shall be installed no later than October 31, 2003, with the exception of erosion control, drainage swales and berming, which shall be installed upon initial grading of Said Plat. 88. Defendant has failed to restore turf for areas disturbed by installation of drain tile lines in such locations as are on Defendant's Property and has thereby violated Sections 3A of "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Sixth Addition dated May 30, 2003 (Exhibit H). 89. By terms of Section 1 C of said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villa's Sixth Addition" (Exhibit H), Defendant agreed to construct sidewalks, including but not limited to a bituminous trail. Section lC states as follows: Developer shall, at its own expense, construct sidewalks in the attached Exhibit C, C-I and C-2 at the time of road construction.. 90. Defendant has failed to complete construction of bituminous trail in such locations as are on Defendant's Property and has thereby violated Sections 1D of "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Sixth Addition dated May 30, 2003 (Exhibit H). 91. By terms of Section 13H of said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villa's Sixth Addition" (Exhibit H), Defendant agreed to follow all water, ponding and wetland 34 related restrictions, to sign the wetland maintenance agreement as required by the wetland mitigation plan. Section 13H states as follows: Developer shall comply with all water, ponding and wetland related restrictions, if any, required by the City of Albertville, Wright County Soil and Water District and/or any applicable provisions of State and Federal law. 92. Defendant has failed to comply with the wetland mitigation plan and failed to sign the wetland maintenance agreement as required by Section 13H of "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Sixth Addition dated May 30, 2003 (Exhibit H) and has thereby violated Said Agreement. 93. Defendant requested timesheets and invoices pursuant to Section 8 of the Agreement. Plaintiff provided Defendant with reasonable documentation to justify the billings, as requested. 94. Plaintiff, by certified letter dated June 15, 2004, defaulted Defendant on the Agreement (Exhibit H) due to Defendant's failure to pay the reasonable administrative, legal, planning, engineering and other professional costs which Plaintiff had incurred in the creation, administration, enforcement and execution of the development contract and the approval of the development of Defendant's lands. In this letter, Defendant was reminded that Plaintiff had previously requested payment of such expenses and that Plaintiff had provided Defendant with a worksheet and detailed invoices outlining the costs. 35 A true and correct copy of said letter is attached hereto as Exhibit "B" and incorporated herein by reference. 95. On or about July 15, 2004, Defendant breached said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villa's," (Exhibit H) by failing to reimburse the Plaintiff for all reasonable administrative, legal, planning, engineering and other professional costs incurred in the creation, administration, enforcement or execution of the contract and the approval of the development of defendant's lands within 30 days of billing by the City. As such, demand has been made on Defendant for reimbursement of fees expended on Defendant's behalf but Defendant has failed and refused and continues to fail and refuse, to repay the sum owed to Plaintiff. 96. Plaintiff, by letter dated July 29, 2004, notified Defendant that Plaintiff had not been reimbursed by Defendant for all reasonable administrative, legal, planning, engineering and other professional costs incurred in the creation, administration, enforcement or execution of the "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Sixth Addition" Exhibit H, and the approval of the development of Defendant's lands. A true and correct copy of said letter is attached hereto as Exhibit "c" and made a part hereof. 36 97. Plaintiff, by letter dated April 5, 2005, Exhibit "D", provided Defendant with detailed information relating to the amounts owed by Defendant for various developments which occurred within the City of Albertville for which Defendant was obligated to reimburse Plaintiff for its costs and expenses. 98. Pursuant to Sections 2D and 8 of the "City of Albertville Conditional Use/Planned Unit Development Agreement Sixth Addition Albert Villas" (Exhibit H), by certified letter dated July 29,2004, Defendant was formally notified by Plaintiff that Plaintiff considered. Defendant to be in default of the various development contracts. 99. By reason of Defendant's breach of said "City of Albertville Developer UseIPlanned Unit Development Sixth Addition", (Exhibit H), development contract as herein alleged, the Plaintiff has suffered damages in the sum of $13,488.49 for failure to pay the City's reasonable costs for professional engineering services and $1,082.50 for failure to pay the City's reasonable costs for professional legal services, both of which are now due, owing, and unpaid plus interest at the legal rate from and after the date due according to proof. 100. By reason of the aforementioned breach of the defendant, the Plaintiff has been forced to secure the services of the legal firm of Couri, MacArthur & Ruppe, P .L.L.P. to prosecute this lawsuit. 37 COUNT VI ZONING REQUEST APPLICATION 101. Plaintiff realleges and incorporates by reference each and every allegation contained in paragraphs 1 through 9 above. 102. On or about May 22,2001, in the City of Albertville, County of Wright, State of Minnesota, Plaintiff and Defendant entered into a written agreement entitled "City of Albertville Zoning Request Application" a copy of which is attached hereto as Exhibit "I" and made a part hereof. 103. By the terms of the "City of Albertville Zoning Request Application" (Exhibit H) Defendant agreed to pay all of Plaintiff s Costs and Expenses related to the creation, administration, enforcement or execution of the development contract and related plat. Specifically, Exhibit H states as follows: I understand that all City incurred professional fees and expenses associated with the processing of this request are the responsibility of the property owner and/or application and should be promptly paid. If payment is not received from the applicant, the property owner acknowledges and agrees to be responsible for the unpaid fee balance either by direct payment or a special assessment against the property. 104. Plaintiff, by letter dated April 5, 2005, Exhibit D, provided Defendant with detailed information relating to the amounts owed by Defendant for various developments which occurred within the City of Albertville for which Defendant was obligated to reimburse Plaintiff for its costs and expenses. 38 105. By reason of Defendant's breach of said "City of Albertville Zoning Request Application" (Exhibit I), development contract as herein alleged, the Plaintiff has suffered damages in the sum of $567.10 for failure to pay professional engineering services related to the development and $330.00 for failure to pay reasonable costs for professional legal services related to the development, both of which are now due, owing, and unpaid plus interest at the legal rate from and after the date due according to proof. 106. By reason of the aforementioned breach of the defendant, the Plaintiff has been forced to secure the services of the legal firm of Couri, MacArthur & Ruppe, P .L.L.P. to prosecute this lawsuit. COUNT VII EDINA DEVELOPMENT STORM WATER BREACH OF CONTRACT 107. Plaintiffrealleges and incorporates by reference each and every allegation contained in paragraphs 1 through 8 above. 108. Chapters A-500, A-600, A-700 and A-800 of the Albertville Subdivision Ordinance in effect at the time of Defendant Edina's application for plat approval required Defendant Edina to submit a design for streets, curb, gutter, storm sewer, and storm water ponding that met the City's ordinance requirements, which, among other things, requires such storm sewer and storm water ponding system to be able to contain a 100-year storm event without discharging at more than one-half of the pre-development peak 39 storm water discharge rates. Chapters A - 700 and A -800 of the Albertville Subdivision Ordinance in effect at the time of Defendant Edina's application for plat approval required Defendant Edina to construct all such streets, curb, gutter, storm sewer and storm water ponding consistent with Edina's design submitted to the City and required storm water facilities to be installed which discharged at no more than one-half of the pre- development peak storm water discharge rates. 109. Edina submitted such engineering designs for Albert Villas plat, Albert Villas Second Addition, Albert Villas Third Addition, Albert Villas Fourth Addition, and Albert Villas Sixth Addition (collectively, "Albert Villas Plats") as part of the approval process for each plat. All such plats are located west of CSAH 19 and drain into County Ditch 9. 110. Each of the Development Agreements attached to this Complaint as Exhibits A, E, F, G and H required the Defendant Edina to construct such streets, curb, gutter, storm sewer and storm water ponding. 111. In paragraph 13.F of each of the Development Agreements attached as Exhibits A, E, F, G and H, Defendant Edina represented as follows: The Developer represents to the City that Said Plat complies with all City, county, state and federal laws and regulations, including but not limited to: subdivision ordinances, zoning ordinances, and environmental regulations. Developer agrees to obtain all required federal, state and local permits.... 112. On April 17, 2006, the Albertville City Council was informed for the fIrst time that the storm sewer and storm water ponding systems installed in the 40 Albert Villas Plats were designed in a manner that did not meet the City's requirements in that these systems could not contain a 100- year storm event without discharging at more than one-half of the pre-development peak storm water discharge rates. Because of these design deficiencies, the City has experienced flooding of streets, yards and homes during storm events which are less severe than a IOO-year storm event. Among the deficiencies identified which contribute to the flooding were the following: A. Edina's design identified 102 acres of property that drained through the Albert Villas Plats. That design failed to properly identify and provide for approximately 535 additional acres that drained through said plats. B. Edina's design calculated the storm water storage capacity of Outlot A, Albert Villas Third Addition as 42.6 acre feet of water. The City believes that the actual storm water storage capacity of said Outlot A is 13.5 acre feet of water and that the difference in storage capacity is due in part to either an inadequate design of the storm water system or the erroneous measurement of the elevation of the wetland contained within said Outlot A. C. Edina's design assumed that the during and immediately after a 100- year storm event the storm water ponds constructed onthe Albert Villas Plats would discharge via pipes into County Ditch No.9 at a faster rate than they actually discharge. 41 113. Defendant Edina's inadequate design has resulted in flooding of streets and yards in certain areas of the Albert Villas plats during and after a 100-year storm event. 114. Defendant Edina's failure to design and construct storm sewer and storm water ponding systems in the Albert Villas Plats which comply with the City's subdivision ordinances relating to storm water discharge constitutes a breach of City of Chapters A-600 and A-800 of the Albertville Subdivision Ordinances, and as such, constitutes a default under the following Developer's Agreements: A. Albert Villas (Exhibit A), Paragraph 13.F. B. Albert Villas Second Addition (Exhibit E), Paragraph 13.F. C. Albert Villas Third Addition (Exhibit F), Paragraph 13.F. D. Albert Villas Fourth Addition (Exhibit G), Paragraph 13.F. E. Albert Villas Sixth Addition (Exhibit H), Paragraph 13.F. 115. The City has been damaged in an amount in excess of $50,000.00 due to Defendant Edina's breach of contract relating to the design and installation of storm sewers and storm water ponding which does not comply with the City's subdivision ordinances. COUNT VIII PLOWE ENGINEERING BREACH OF CONTRACT 42 116. Defendant, Plowe Engineering, Inc. is and at all times mentioned herein was a corporation organized and existing under the laws of the State of Minnesota with its principal offices located at 9180 Lexington A venue North, Circle Pines, Minnesota. 117. Plaintiff realleges and incorporates by reference each and every allegation contained in paragraphs 107 through 113 above. 118. Plaintiff alleges, based upon information and belief, that Defendant Edina contracted with Plowe Engineering, Inc. ("PI owe") to have Plowe design storm sewers and storm water ponds which would allow the Albert Villas Plats to contain a 100-year storm event without discharging at more than one-half of the pre-development peak storm water discharge rates. PI owe had specific knowledge that such storm sewers and storm water ponds would be dedicated to the City and would become the property of the City. 119. The City is a third party beneficiary of the contract between PI owe and Defendant Edina in that the City was an intended beneficiary to Plowe's proper design of the storm sewers and storm water ponds. 120. Plowe breached its contractual obligation to the City by failing to properly design the storm sewers and storm water ponds. 121. The City has been damaged in an amount in excess of $50,000.00 due to Defendant Plowe's breach of contract relating to the design of storm sewers and storm water ponding which does not comply with the City's subdivision ordinances. 43 COUNT IX PLOWE ENGINEERING NEGLIGENCE 122. Plaintiffrealleges and incorporates by reference each and every allegation contained in paragraphs 107 through 113 above. 123. Plaintiff alleges, based upon information and belief, that Defendant Edina contracted with Plowe to have PI owe design storm sewers and storm water ponds which would allow the Albert Villas Plats to contain a IOO-year storm event without discharging at more than one-half of the pre- development peak storm water discharge rates. 124. Plowe had specific knowledge that such storm sewers and storm water ponds would be dedicated to the City and would become the property of the City. Because Plowe had prior knowledge that the storm sewers and storm water ponds would be dedicated to the City, Plowe owed the City a duty to properly design the storm sewers and storm water ponds to contain a 100- year storm event without discharging at more than one-half of the pre- development peak storm water discharge rates. 125. Plowe was negligent in its design of the storm sewers and storm water ponds in that Plowe failed to properly design the storm sewer and storm water ponds . to contain a IOO-year storm event without discharging at more than one- half of the pre-development peak storm water discharge rates as required by 44 City ordinance. Plowe's negligence is the proximate cause ofthe City's damages as alleged herein. 126. The City has been damaged in an amount in excess of $50,000.00 due to Defendant Plowe's negligence in the design of the storm sewers and storm water pondingwhich does not comply with the City's subdivision ordinances. Plowe's negligence is the proximate cause of the City's damages as alleged herein. COUNT X E.G. RUD & SONS, INC. BREACH OF CONTRACT 127. Defendant, E.G. Rud & Sons, Inc. is and at all times mentioned herein was a corporation organized and existing under the laws of the State of Minnesota with its principal offices located at 6776 Lake Drive N.E., Suite 110, Lino Lakes, Minnesota, and with such offices formerly located at 9180 Lexington Avenue North, Circle Pines, Minnesota. . 128. Plaintiffrealleges and incorporates by reference each and every allegation contained in paragraphs 107 through 113 above. 129. Plaintiff alleges, based upon information and belief, that Defendant Edina contracted with E.G. Rud & Sons, Inc. ("Rud") to have Rud survey and provide various elevations in the Albert Villas Plats, including the elevation . of the wetland contained within Outlot A of Albert Villas Third Addition. 45 130. Rud had specific knowledge that such wetland elevations would be used in designing a storm water system that would be dedicated to the City and would become the property of the City. 131. The City is a third party beneficiary of the contract between Rud and Defendant Edina in that the City was an intended beneficiary to the proper design of the storm sewers and storm water ponds for which Rud was supplying wetland elevation data. 132. Rud breached its contractual obligation to the City by failing to properly measure the elevation of the wetland contained within Outlot A of Albert Villas Third Addition. 133. The City has been damaged in an amount in excess of $50,000.00 due to Defendant Rud's breach of contract relating to the proper measurement of the elevation of the wetland contained in Outlot A of Albert Villas Third Addition. COUNT XI E.G. RUD & SONS, INC. NEGLIGENCE 134. Plaintiffrealleges and incorporates by reference each and every allegation contained in paragraphs 107 through 113 and paragraph 129 above. 135. Rud had specific knowledge that such wetland elevations would be used in designing a storm water system that would be dedicated to the City and would become the property of the City. Because Rud had prior knowledge 46 that the storm sewers and storm water ponds would be dedicated to the City, Rud owed the City a duty to properly measure the elevation of the wetland complex in Outlot A of Albert Villas Third Addition so that the storm sewers and storm water ponds could be properly designed to contain a 100-year storm event without discharging at more than one-half of the pre-development peak storm water discharge rates. 136. Rud was negligent in calculating the incorrect elevation of the wetland complex contained within Outlot A of Albert Villas Third Addition, which resulted in less available storm water storage in the storm water system for the Albert Villas Plats. Rud's negligence is the proximate cause of the City's damages as alleged herein. 137. The City has been damaged in an amount in excess of $50,000.00 due to Defendant Rud's negligence in calculating the incorrect elevation of the wetland complex contained within Outlot A of Albert Villas Third Addition. Rud's negligence is the proximate cause of the City's damages as alleged herein. COUNT XII SEH BREACH OF CONTRACT 138. Defendant, Short, Elliot & Hendrickson, Inc. ("SEH")is and at all times mentioned herein was a corporation organized and existing under the laws 47 of the State of Minnesota with its offices located at Butler Square Building, Suite 710C, 100 North Sixth Street, Minneapolis, Minnesota. 139. Plaintiffrealleges and incorporates by reference each and every allegation contained in paragraphs 107 through 113 and paragraph 117 above. 140. Since approximately July 18, 1994, the City of Albertville has contracted with SEH to provide engineering services to the City. These services included "review" services for all preliminary and fmal plat submissions, under which SEH was to review the engineering submittals and make a determination and advise the Albertville City Council whether the street, storm sewer, storm water ponding, sanitary sewer, and municipal water designs submitted by the property owner or developer met the requirements of the City's zoning and subdivision ordinances. 141. With respect to Albert Villas Plats, SEH improperly determined that the storm sewers and storm water ponds were properly engineered to contain a 100- year storm event without discharging at more than one-half of the pre- development peak storm water discharge rates. 142. SEH breached the terms ofits contract by not advising the City that the storm sewers and storm water ponds within the Albert Villas Plats were not properly engineered to contain a 100- year storm event without discharging at more than one-half of the pre-development peak storm water discharge rates. 143. The City has been damaged in an amount in excess of $50,000.00 due to Defendant SEH's breach of contract identified in paragraph 142 above. 48 COUNT XIII SEH NEGLIGENCE 144. Plaintiffrealleges and incorporates by reference each and every allegation contained in paragraphs 107 through 113, paragraph 117 and paragraph 137 above. 145. As a result of SEH's relationship with the City, SEH owed the City a duty to properly evaluate the design of the Albert Villas Plats to determine if the storm sewers and storm water ponds were properly engineered to contain a IOO-year storm event without discharging at more than one-half of the pre- development peak storm water discharge rates. 146. SEH breached this duty by failing to properly evaluate the design of the Albert Villas Plats regarding their ability to contain a 100- year storm event without discharging at more than one-half of the pre-development peak storm water discharge rates and by failing to properly advise the Albertville City Council that such designs did not meet the City's Subdivision Ordinances. SEH's negligence is the proximate cause of the City's damages as alleged herein. 147. The City has been damaged in an amount in excess of $50,000.00 due to Defendant SEH's negligence in evaluating the design of the storm sewers and storm water ponding in the Albert Villa's Plats. 49 COUNT XIV EDINA STOCKPILING OF DIRT 148. During the development of the Albert Villas Plats, Edina caused dirt, fill and other soil materials in excess of 50 cubic yards to be moved from the Albert Villas Plats to an unplatted property located north of Albert Villas 6th Addition and located as shown on the attached Exhibit J ("Unplatted Property"). 149. City Zoning Ordinance Section 1900.1 states in part: Permit Required. The extraction of sand, gravel, black dirt or other natural material from the land or the grading ofland by a person in the amount of fifty (50) cubic yards or more shall be termed land excavation/grading and shall require a permit. 150. Edina has never obtained a permit to stockpile and grade the dirt, fill and other soil materials on the Unplatted Property. 151. Edina's stockpiling and grading of dirt, fill and other soil materials in excess of 50 cubic yards without a permit as required by Section 1900.1 of the City's Zoning Ordinance constitutes a violation of Section 1900.1. PRAYER WHEREFORE, Plaintiff prays for relief by this Court as follows: 1. Judgment awarding joint and several damages in an amount in excess of $50,000 against Edina, Plowe, Rud and SEH; 50 Dated: 2. Judgment against all Defendants awarding Plaintiff its costs, reasonable attorney's fees, disbursements and expenses arising from the litigation of this action; 3. An order requiring Defendant Edina to fully comply with all contractual obligation as identified in this Complaint; 4. An order requiring Defendant Edina to obtain a permit for and properly dispose of the excess soil stockpiled on the Unplatted Property; and 5. Such other and further relief as this Court deems just and proper. ,2006 Michael C. Couri, Attorney No. 214887 Couri, Macarthur & Ruppe, P ,L.L.P. P.O. Box 369 St. Michael, MN 55376 (763) 497-1930 51 ACKNOWLEDGEMENT The undersigned hereby acknowledges that costs, disbursements, and reasonable attorney and witness fees may be awarded should this pleading be found in violation of Minnesota Statutes Section 549.21, subdivision 2. Date: , 2006 Michael C. Couri, Attorney No. 214887 52