2005-10-20 City Answers to Defendant Interrogatories STATE OF MINNESOTA DISTRICT COURT
COUNTY OF WRIGHT TENTH JUDICIAL DISTRICT
Other Civil—Breach of Contract
City of Albertville, Minnesota, Court File No. C9-05-2481
Plaintiff
vs. CITY OF ALBERTVILLE'S
ANSWERS TO DEFENDANT'S
Edina Development Corporation INTERROGATORIES
Defendant.
TO: Mr. Kyle Hegna, Wilkerson & Hegna, P.L.L.P., One Corporate Center III, Suite
300, 7300 Metro Boulevard, Edina, MN 55439-2302
1. Identify every person who you believe has knowledge of any facts or issues which are in any
way connected to this action and for each such person provide a general statement of his or her
area of knowledge.
ANSWER:
The City objects to this interrogatory as overly broad, and unduly oppressive and burdensome.
Notwithstanding said objection, the City answers as follows:
Linda Goeb
Larry Kruse, City of Albertville, 5975 Main Ave. N.E., Albertville, Minnesota 55301
Tina Lannes, City of Albertville, 5975 Main Ave. N.E., Albertville, Minnesota 55301
Bridget Miller, City of Albertville, 5975 Main Ave. N.E., Albertville, Minnesota 55301
Pete Carlson, SEH Colorado Center Tower One, Suite 6000, 2000 S. Colorado Boulevard,
Denver, CO 80222
Bob Moberg, SEH, 3535 Vadnais Center Drive, St. Paul, MN 55110 651-491-2000
Russ Bly, SEH, 3535 Vadnais Center Drive, St. Paul, MN 55110 651-491-2000
1
Mike Czech, SEH, 3535 Vadnais Center Drive, St. Paul, MN 55110 651-491-2000
Deric Deuschle, , SEH, 3535 Vadnais Center Drive, St. Paul, MN 55110 651-491-2000
2. Identify by author, date, and subject matter, all statements (as the term "statement" is defined
in Minn. R. Civ. P. Rule 26.02) made by any person concerning the subject matter of this lawsuit
or concerning the parties' claims or defenses.
ANSWER:
No such statements have been made to date.
3. Identify any and all persons whom you intend to call as witness in this matter.
ANSWER:
Linda Goeb
Larry Kruse
Pete Carlson
Russ Bly
Mike Czech
Bob Moberg
Tina Lannes
Bridget Miller
4. Have you employed, or do you intend to employ, experts to furnish their opinions regarding
any matter involved in this lawsuit? If so, identify and describe in detail:
a. The name and address of each expert you expect to consult or call at trial;
ANSWER:
To the extent that the witnesses identified in answer number 3 above may be experts in their
respective fields, they may be called to testify. No other experts have been identified to date, but
Plaintiff reserves the right to name additional experts as the need may be identified.
2
b. The subject matter on which each expert is expected to testify;
ANSWER:
Pete Carlson, Bob Moberg and Russ Bly, civil engineering and services related thereto.
Tina Lannes, city finance operations.
c. The substance of the facts and opinions to which each expert is expected to testify;
ANSWER:
The scope of their expected expert testimony is not known at this time.
d. A separate summary of the grounds for each opinion to be given by each expert;
ANSWER:
The scope of their expected expert testimony is not known at this time.
e. All documents reviewed or relied upon by the expert in regard to the expert's opinions; and
ANSWER:
No such documents have yet been identified as the scope of their expected expert testimony is
not known at this time.
f. The expert's curriculum vitae.
ANSWER:
These documents will be made available with the production of documents.
5. Identify any and all communications between you and Defendant concerning the parties' City
of Albertville Conditional Use/Planned Unit Development Agreement Albert Villa's
"Development Agreements") or the June 20, 2005 Amended Wetland Mitigation Agreement, and
provide and/or identify:
(a) The date of the communications;
3
(b) To whom the communications were directed;
(c) All documents related to any communications between Defendant and yourself regarding the
development work under the Development Agreements or the June 20, 2005 Amended Wetland
Mitigation Agreement Joint Development Agreement; and
(d) Identify all persons with knowledge of such communications.
ANSWER:
The City objects to this interrogatory as overly broad, and unduly oppressive and burdensome.
Notwithstanding said objection, the City answers as follows:
All such written communication between the City and Defendant will be produced in document
production. Oral communication has occurred throughout the development process on hundreds
of occasions which have not been documented and are unable to be determined with specificity
as to when such communication occurred. Such communication likely involved the following
people on behalf of the Plaintiff:
Linda Goeb
Larry Kruse
Pete Carlson
Russ Bly
Mike Czech
Bob Moberg
Tina Lannes
Bridget Miller
4
Deric Deuschle
Michael Couri
6. Identify in detail any and all communications between you and Defendant concerning any and
all billings, costs, and fees assessed by you to Defendant under the Development Agreements
and provide and/or identify:
a. All documents related to any and all billings, cost, and fees assessed by you to Defendant
under the Development Agreements, including, but not limited to all time sheets and work
records.
ANSWER:
All such documents will be produced with the document discovery.
7. Identify in detail any and all billing, invoices, and/or requests for payment sent to Defendant
with respect to the Development Agreements specified herein and list, provide, and/or identify:
a. The nature of the work for which the City of Albertville is requesting payment(e.g.
administrative, legal, planning, engineering, etc.);
b. The date(s) on which said work was allegedly provided;
c. The identity of the firm, entity, and/or person who allegedly provided said work;
d. All time sheets for said work;
ANSWER:
The City will produce those records in its possession with the document production, but has no
authority to produce such records of employees who are not City employees or documents
relating to City employees which may contain private data.
e. All work records for said work; and
ANSWER:
The City will produce those records in its possession with the document production, but has no
authority to produce such records of employees who are not City employees or documents
relating to City employees which may contain private data.
5
f. Payroll records for all firms, entities, and/or persons with respect to the request for payment for
the work.
ANSWER:
The City will produce those records in its possession with the document production, but has no
authority to produce the payroll records of employees who are not City employees or documents
relating to City employees which may contain private data.
8. Identify in detail all facts in support of your assertion of the claim for breach of contract
regarding Albert Villas Plat in Count I of your Complaint in this matter.
ANSWER:
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."
Pursuant to Sections 2D and 8 of said development contract, 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.
Pursuant to Section 13H of said "City of Albertville Conditional Use/Planned Unit
Development Agreement Albert Villa's", 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.
Plaintiff, by certified letter dated June 15, 2004, defaulted Defendant on the Agreement
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
6
contract and the approval of the development of Defendant's lands. . 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. 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. Pursuant to Sections 2D and 8 of the "City of Albertville
Conditional Use/Planned Unit Development Agreement Albert Villa's" and by letter
dated April 5, 2005, Defendant was formally notified by Plaintiff that Plaintiff considered
Defendant to be in default of the "City of Albertville Conditional Use/Planned Unit
Development Agreement Albert Villa's." Pursuant to Section 21 of said "City of
Albertville Conditional Use/Planned Unit Development Agreement Albert Villa's,"
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.
Defendant requested timesheets and invoices pursuant to Section 8 of the Agreement.
Plaintiff provided Defendant with reasonable documentation to justify the billings, as
requested. On or about July 15, 2004, Defendant breached said "City of Albertville
7
Conditional Use/Planned Unit Development Agreement Albert Villa's," 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. By reason of Defendant's breach of said development contract as herein alleged,
the Plaintiff has suffered damages in the sum of $31,497.57 for costs associated with
reasonable professional engineering services, $125.00 for costs associated with the City's
reasonable costs for weed removal, $130.50 for costs associated with the City's reasonable
costs of professional planning services related to a sign issues and $182.50 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 The amounts identified in this answer were amounts
owed as of September 30, 2005.
Interest in the total amount of$27,653.82 (calculated through September 30, 2005) is owed to
the City, said interest being calculated on all amounts owed to the City under all counts in the
City's complaint. As of September 30, 2005, legal fees in the amount of$13,782.00 have been
incurred by the City in pursuing collection of the monies identified in the complaint and such
amount is thus due and owing to the City from Defendant.
9. Identify in detail all facts in support of your assertion of the claim for breach of contract
regarding Albert Villas Second Addition Plat in Count II of your Complaint in this matter.
8
ANSWER:
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." This development
contract incorporated by reference and supplemented the "City of Albertville Conditional
Use/Planned Unit Development Agreement Albert Villa's."
By the terms of Sections 2D and 8 of the "City of Albertville Conditional Use/Planned
Unit Development Agreement Albert Villa's Second Addition." Defendant agreed to
pay all of Plaintiff's Costs and Expenses related to the creation, administration,
enforcement or execution of the contract and related plat.
By terms of Section 13H of said "City of Albertville Conditional Use/Planned Unit
Development Agreement Albert Villa's Second Addition", 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.
By terms of Section 21 of said "City of Albertville Conditional Use/Planned Unit
Development Agreement Albert Villa's Second Addition", Defendant agreed to pay all of
the professional fees incurred by Plaintiff. Plaintiff, by certified letter dated June 15, 2004,
defaulted Defendant on the Agreement 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.
Plaintiff, by letter dated July 29, 2004, notified Defendant that Plaintiff had not been
9
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", and the approval of the development of Defendant's lands.
Plaintiff, by letter dated April 5, 2005, again defaulted Defendant and provide 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 also provided detailed information regarding
Plaintiff's failure to comply with wetland mitigation plans and failure to sign the wetland
maintenance agreement. Defendant requested timesheets and invoices pursuant to Section
8 of the Agreement. Plaintiff provided Defendant with reasonable documentation to
justify the billings, as requested.
Pursuant to Sections 2D and 8 of the "City of Albertville Conditional Use/Planned Unit
Development Agreement Albert Villas," 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.
On or about July 15, 2004, Defendant breached the said "City of Albertville Conditional
Use/Planned Unit Development Agreement Albert Villas Second Addition," 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
10
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.
By reason of Defendant's breach of said development contract as herein alleged, the
Plaintiff has suffered damages in the sum of$47,586.70 in unpaid engineering fees incurred
by the City and $31.25 in unpaid legal fees incurred by the City which is now due, owing, and
unpaid plus interest at the legal rate from and after the date due according to proof The amounts
identified in this answer were amounts owed as of September 30, 2005.
Interest in the total amount of$27,653.82 (calculated through September 30, 2005) is owed to
the City, said interest being calculated on all amounts owed to the City under all counts in the
City's complaint. As of September 30, 2005, legal fees in the amount of$13,782.00 have been
incurred by the City in pursuing collection of the monies identified in the complaint and such
amount is thus due and owing to the City from Defendant.
10. Identify in detail all facts in support of your assertion of the claim for breach of contract
regarding Albert Villas Third Addition Plat in Count III of your Complaint in this matter.
ANSWER:
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 Albertville Conditional Use/Planned Unit
Development Agreement Albert Villas."
11
By the terms of Sections 2D and 8 of the "City of Albertville Conditional Use/Planned Unit
Development Agreement Albert Villas Third Addition." 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. By terms of Section 21 of said "City of Albertville
Conditional Use/Planned Unit Development Agreement Albert Villa's Third Addition",
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. By terms of Sections 10 of said "City of
Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Third Addition,"
Defendant agreed to comply with all requirements set forth in this Agreement regarding
maintenance of county or any other ditches through which water from Defendant's Property may
drain. Defendant has failed to clean such portions of County Ditch No. 9 which located on
Defendant's property, thereby breaching the Agreement with respect to Section 10 of said
Agreement.
By terms of Sections 2A and 2B of said "City of Albertville Conditional Use/Planned Unit
Development Agreement Albert Villas Third Addition," 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.
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".
12
By terms of Section 1C of said "City of Albertville Conditional Use/Planned Unit Development
Agreement Albert Villas Third Addition," defendant has failed to construct side walks and trails in
locations specified in this Agreement and therefore breached said Agreement. By terms of Section
11 of said "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas
Third Addition," Defendant agreed to comply with all requirements set forth in this Agreement
regarding damages to and cleaning of county or any other ditches through which water from
Defendant's Property may drain.
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".
By terms of Section 13H of said "City of Albertville Conditional Use/Planned Unit
Development Agreement Albert Villa's Third Addition", 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.
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
Use/Planned Unit Development Agreement Albert Villas Third Addition."
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.
Plaintiff, by certified letter dated June 15, 2004, defaulted Defendant on the Agreement due to
13
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.
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," and the approval of the development of Defendant's
lands.
Defendant requested timesheets and invoices pursuant to Section 8 of the Agreement. Plaintiff
provided Defendant with reasonable documentation to justify the billings, as requested.
Pursuant to Sections 2D and 8 of the "City of Albertville Conditional Use/Planned Unit
Development Agreement Albert Villas," 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. On or about July 15, 2004, Defendant breached the said "City of
Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Third Addition,"
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. Plaintiff, by letter dated April 5, 2005, provided Defendant with detailed information
14
relating to breaches Defendant made to the said "City of Albertville Conditional Use/Planned Unit
Development Agreement Albert Villas Third Addition," 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.
By reason of Defendant's breach of said development contract as herein alleged, the
Plaintiff has suffered damages in the sum of $77,891.31 for failure to pay the City's
reasonable cost for professional engineering services and $3,017.80 for failure to pay the
City's reasonable costs for planning services, and $62.50 in for failure to pay the City's
reasonable cost for legal services, all of which are now due, owing, and unpaid plus interest at
the legal rate from and after the date due according to proof The amounts identified in this answer
were amounts owed as of September 30, 2005.
Interest in the total amount of$27,653.82 (calculated through September 30, 2005) is owed to
the City, said interest being calculated on all amounts owed to the City under all counts in the
City's complaint. As of September 30, 2005, legal fees in the amount of$13,782.00 have been
incurred by the City in pursuing collection of the monies identified in the complaint and such
amount is thus due and owing to the City from Defendant.
11. Identify in detail all facts in support of your assertion of the claim for breach of contract
regarding Albert Villas Fourth Addition Plat in Count IV of your Complaint in this matter.
ANSWER:
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". This development
15
contract incorporated by reference and supplemented the "City of Albertville Conditional
Use/Planned Unit Development Agreement Albert Villas".
By the terms of Sections 2D and 8 of the "City of Albertville Conditional Use/Planned
Unit Development Agreement Albert Villas Fourth Addition" 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. Pursuant to Section 21 of said
"City of Albertville Conditional Use/Planned Unit Development Agreement Albert
Villa's Fourth Addition", 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.
By terms of Sections 2A and 2B of said"City of Albertville Conditional Use/Planned unit
Development Agreement Albert Villas Fourth Addition,"Defendant agreed to construct municipal
improvements on and off the Defendant's property as detailed in the plans and specifications
prepared by Plow Engineering dated August 14, 2001.
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 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 and 2B of"City of Albertville
Conditional Use/Planned Unit Development Agreement Albert Villas Fourth Addition dated
April 1, 2002".
By terms of Section 1D of said "City of Albertville Conditional Use/Planned Unit
Development Agreement Albert Villas Fourth Addition" Defendant agreed to install
sidewalks and curbs on Defendant's property. Defendant has failed to install sidewalk and
curb replacement and failed to saw and seal curb in such locations as are on Defendant's
16
Property and has thereby violated Sections 1D of "City of Albertville Conditional
Use/Planned Unit Development Agreement Albert Villas Fourth Addition dated April 1,
2002".
By terms of Section 3F of said "City of Albertville Conditional Use/Planned Unit
Development Agreement Albert Villas Fourth Addition," Defendant agreed to install storm
water retention/water quality ponds and basins on Defendant's property.
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.
By terms of Sections 10 and 11 of said "City of Albertville Conditional Use/Planned unit
Development Agreement Albert Villas Fourth Addition," Defendant agreed to comply with all
requirements set forth that Agreement regarding damages to and cleaning of county or any other
ditches through which water from Defendant's Property may drain.
Defendant has failed to remove construction debris and washout material in County Ditch
No. 9 at 49 h 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". Defendant requested
timesheets and invoices pursuant to Section 8 of the Agreement. Plaintiff provided
Defendant with reasonable documentation to justify the billings, as requested.
Plaintiff, by certified letter dated June 15, 2004, defaulted Defendant on the Agreement 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
17
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.
On or about July 15, 2004, Defendant breached the said "City of Albertville Conditional
Use/Planned Unit Development Agreement Albert Villas Fourth Addition", 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.
Pursuant to Sections 2D and 8 of the "City of Albertville Conditional Use/Planned Unit
Development Agreement Albert Villas Fourth Addition", 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.
Plaintiff, by letter dated April 5, 2005, 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.
By reason of Defendant's breach of said development contract as herein alleged, the
Plaintiff has suffered damages in the sum of $93,320.96 for failure to pay the City's
reasonable cost for professional engineering services and $62.50 in for failure to pay the
City's reasonable cost for legal services, all of which are now due, owing, and unpaid plus
18
interest at the legal rate from and after the date due according to proof The amounts identified in
this answer were amounts owed as of September 30, 2005.
Interest in the total amount of$27,653.82 (calculated through September 30, 2005) is owed to
the City, said interest being calculated on all amounts owed to the City under all counts in the
City's complaint. As of September 30, 2005, legal fees in the amount of$13,782.00 have been
incurred by the City in pursuing collection of the monies identified in the complaint and such
amount is thus due and owing to the City from Defendant.
12. Identify in detail all facts in support of your assertion of the claim for breach of contract
regarding Albert Villas Sixth Addition Plat in Count V of your Complaint in this matter.
ANSWER:
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". This development
contract incorporated by reference and supplemented the "City of Albertville Conditional
Use/Planned Unit Development Agreement Albert Villas". By the terms of Sections 2D and 8 of
the "City of Albertville Conditional Use/Planned Unit Development Agreement Albert Villas
Sixth Addition," 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.
Pursuant to Section 21 of said "City of Albertville Conditional Use/Planned Unit Development
Agreement Albert Villa's Sixth Addition", 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.
By terms of Sections IA, 1C, 2A, and 2C of said "City of Albertville Conditional
Use/Planned Unit Development Agreement Albert Villas Sixth Addition,"Defendant agreed
19
to construct and maintain the storm sewer system on Defendant's property as detailed in the
plans and specifications prepared by Plow Engineering dated August 14, 2001.
Defendant has failed to clean the storm water sewer in such locations as are on
Defendant's Property and has thereby violated Sections IA, 2A, and 2C of "City of
Albertville Conditional Use/Planned Unit Development Agreement Albert Villas Sixth
Addition dated May 30, 2003.
By terms of Sections 2C, 10, 11 of said "City of Albertville Conditional Use/Planned unit
Development Agreement Albert Villas Sixth Addition," Defendant agreed to comply with
all requirements set forth in this Agreement 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.
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 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.
By terms of Section 3A of said "City of Albertville Conditional Use/Planned Unit
Development Agreement Albert Villa's Sixth Addition", Defendant agreed to construct
all on and off site improvements, including but not limited, construction of turf for areas
disturbed by installation of drain the lines.
20
Defendant has failed to restore turf for areas disturbed by installation of drain the 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.
By terms of Section 1C of said "City of Albertville Conditional Use/Planned Unit
Development Agreement Albert Villa's Sixth Addition", Defendant agreed to construct
sidewalks, including but not limited to a bituminous trail. 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.
Plaintiff provided Defendant with reasonable documentation to justify the billings, as
requested.
Plaintiff, by certified letter dated June 15, 2004, defaulted Defendant on the Agreement 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.
On or about July 15, 2004, Defendant breached said "City of Albertville Conditional
Use/Planned Unit Development Agreement Albert Villa's," 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
21
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. 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",
and the approval of the development of Defendant's lands. Plaintiff, by letter dated April 5,
2005, 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. Pursuant to
Sections 2D and 8 of the "City of Albertville Conditional Use/Planned Unit Development
Agreement Sixth Addition Albert Villas" 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.
By reason of Defendant's breach of said "City of Albertville Developer Use/Planned Unit
Development Sixth Addition", development contract as herein alleged, the Plaintiff has
suffered damages in the sum of$14,801.76 for failure to pay the City's reasonable costs for
professional engineering services, $28.05 for failure to pay the City's reasonable costs for
professional planning services, and $93.75 for failure to pay the City's reasonable costs for
professional legal services, all of which are now due, owing, and unpaid plus interest at the legal
22
rate from and after the date due according to proof. The amounts identified in this answer were
amounts owed as of September 30, 2005.
Interest in the total amount of$27,653.82 (calculated through September 30, 2005) is owed to
the City, said interest being calculated on all amounts owed to the City under all counts in the
City's complaint. As of September 30, 2005, legal fees in the amount of$13,782.00 have been
incurred by the City in pursuing collection of the monies identified in the complaint and such
amount is thus due and owing to the City from Defendant.
13. Identify in detail all facts in support of your assertion of your claim for breach of contract
regarding the City of Albertville Zoning Request Application in Count VI of your Complaint in
this matter.
ANSWER:
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."
By the terms of the "City of Albertville Zoning Request Application"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. Plaintiff, by letter dated April 5, 2005, 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. By reason of Defendant's breach of said "City of
Albertville Zoning Request Application" development contract as herein alleged, the Plaintiff has
suffered damages in the sum of $330.00 for failure to pay reasonable costs for professional legal
services related to the development, and $2.60 for failure to pay reasonable costs for professional
23
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. The amounts identified in this answer were amounts
owed as of September 30, 2005.
Interest in the total amount of$27,653.82 (calculated through September 30, 2005) is owed to the
City, said interest being calculated on all amounts owed to the City under all counts in the City's
complaint. As of September 30, 2005, legal fees in the amount of$13,782.00 have been incurred by
the City in pursuing collection of the monies identified in the complaint and such amount is thus due
and owing to the City from Defendant.
14. Identify all documents that you refuse to produce in this lawsuit as a result of a claim by you
of privilege or reliance upon the attorney work product doctrine.
ANSWER:
A list of such documents will be produced with document production.
Submitted this 20th day of October, 2005.
Bridget Miller,
City Clerk
Subscribed and sworn before me this 20' day of October, 2005.
Notary Public
24
Michael C. Couri, Attorney No. 214887
Attorney for Plaintiff
Couri, Macarthur&Ruppe,P.L.L.P.
P.O. Box 369
St. Michael, MN 55376
(763)497-1930
25