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HomeMy WebLinkAboutSummons & Complaint BOLOC3NA. ~ YOUNC3 ,,-c;.c. c.. \ ,,~ '}I 1/1.,) IO~"tS'"~ . 1-11> ATTORNEYS AT LAW 2100 NORWEST FINANCIAL CENTER 7900 XERXES A VENUE SOUTH MINNEAPOLIS. MINNESOTA SS431 PETER A. BOLOGNA TELEPHONE (612) 83S-9001 FACSIMILE (612) 831-8444 DANIEL J. YOUNG July 13, 1993 Clerk of the City of Prior Lake 4629 Dakota St. S.E. Prior Lake,:MN 55372 Dear Clerk of the City of Prior Lake: Enclosed and personally served upon you, please find the attached Summons and Complaint. Sincerely, ;r;j~ YOUNG Daniel 1. ~ Attorney at DJY/sk Enclosures cc.: Priorview Ltd. Partnership c/o Mr. Joseph Knoblauch STATE OF MINNESOTA DISTRICT COURT COUNTY OF scarr EIGHTH JUDICIAL DISTRICT COURT FILE NO.: -----~----------------------- priorview Limited Partnership a/kia, priorview Ltd., a Minnesota Limited partnership plaintiff, v. SUMMONS Independent School District No. 719 of Scott County and the city of Prior Lake, Defendants. --~-------------------------- \ THE STATE OF MINNESOTA TO THE ABOVE-NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED and required to serve upon Plaintiff's attorney a response to the complaint which is herewith served upon you. within twenty (20) days after service of this Summons upon you, exclusive of the day of service. If you fail to do so, judgement by default will be taken against you for the relief demanded in the Complaint. July J 3 , 1993 BOLOGNt} Y:01't1 ' By: !Jj//. ,M/ Daniel J. YdUf,~13913 2100 Norwes~ in cial Center 7900 Xerxes A en e South Minneapolis, Minnesota 55431 612-835-9001 Attorneys for plaintiff -1- 5. The written Agreement provided that the School District would contribute to priorview, money for the costs associated with road way construction undertaken by priorview as well as other improvements including reshaping, surfacing, walk-ways, storm sewers and drainage. 6. The written Agreement was contingent upon priorview's full compliance with the requirements and approval of the City of Prior Lake. 7. On July 21, 1987, and as a result of priorview's full compliance with the terms of the Agreement and with the other requirements and demands of the Defendants, Prior Lake accepted for perpetual maintenance Phase I of the construction project. Furthermore, on October 3, 1991, and as a result of priorview's full compliance with the terms of the Agreement and with other requirements and demands of the Defendants, Prior Lake accepted for continuous maintenance Phase II of the construction project. , ... 8. Dr. Cy F. Kruse was the duly appo1nted Superintendent of Schools for the Defendant School District #719 at all times referred herein and prior to the appointment of Dr. Les C. Sonnabend as the Superintendent of Schools for Defendant Independent School District #719. , 9. Dr. Les C. Sonnabend was and continues to be the duly appointed superintendent of Schools for Defendant Independent School District #719 of Scott County. 10. Gregory Mead was the Director of Business Affairs for Defendant School District at all times referred herein prior to the appointment of Jerry N. Phillips, and thereafter Jerry N. Phillips has been and still is said Director of Business Affairs of said School District. 11. C. Lowell Ek was the Clerk for Defendant School District at all times referred to herein prior to the appointment of Marge Kenney has been and still is clerk for said School District. 12. william Schmokel at all times referred to herein has been and still is the Chairman of the Board for Defendant School District. 13. At all times referred to herein, Larry J. Anderson has held various position with the Defendant City of Prior Lake inclUding city Engineer and most recently as the Director of Public Works for said Defendant. -2- COUNT I Breach of Contract 14. priorview restates, reincorporates and realleges each and every matter, allegation and thing contained in paragraphs 1-13 above as though full set forth herein. 15. Pursuant to said Agreement, Defendant School District agreed to pay for thirty nine and 53/100 percent (39.53%) of all costs associated with the Phase I of Plaintiff's road-way construction including the cost of reshaping, surfacing and walk-ways. 16. Pursuant to said Agreement Defendant School District further agreed to pay for Fifty Percent (50%) of all costs associated with Phase II for the road-way and walk-way construction undertaken in connection with the adjoining School District property, including the-cost of reshaping and surfacing the walk-ways and road-ways. ~ 17. Pursuant to said Agreement, Defendant School District further agreed to pay for twenty-seven and 38/100 percent (27.38%) of all costs associated with storm sewer and drainage for Phase I and II of the construction project. I 18. Pursuant to and in reliance to upon said Agreement, priorview undertook the -.entire road-way construction project and complied with all plans, specifications and requirements of the School District and Prior Lake. 19. The total cost of said road-way construction under taken by priorview in connection with Phase I of the project was One Hundred-Six Thousand, Five Hundred and Eighty Dollars ($106,580.00). priorview has paid the full amount in connection with Phase I of the construction project. 20. That pursuant to said Agreement, priorview has fulfill~d its obligation thereunder and is owed an amount of FortY-1~o Thousand, One Hundred Thirty-one and nO/100 Dollar ($42,131.00) which is equal to Thirty-nine and 53/100 percent (39.53%) of the cost of Phase I of the road-way construction pursuant to said Agreement. 21. Pursuant to and in reliance upon said written Agreement, Plaintiff undertook the construction project identified as Phase II of reshaping, resurfacing and walk-ways. The total cost of Phase II construction included an amount exceeding Fifty-four Thousand, Two Hundred and Sixty-two Dollars and 55/100 .(~54,~62.55). priorview has paid th~ full amount in connection w1th P~ase II of the construct1on proJect. \ \ -3- I ; 22. Pursuant to said Agreement Plaintiff has fulfille~ its obligations thereunder and is owed an amount of Twenty-~even Thousand, One Hundred Thirty-one Dollars and 27/100 ($27,131.27) which amount is equal to Fifty percent of the cost associated with the construction as called for in phase II of said Agreement. 23. Pursuant to and in reliance upon said Agreement, priorview undertook the construction of the storm sewers and drainage of both Phases I and II. The total cost of said construction undertaken in connection with this portion of the project was Twenty Thousand Three Hundred and Twenty Dollars ($20,320.0P). priorview has paid this amount in full for the construction\of the storm sewers and drainage of said Phases I and II. \ ~" 24. Pursuant to said Agreement priorview has fulfilled its obligation thereunder and is owed an amount of Five Thousand, Five Hundred sixty-three Dollars and 62/100 ($5,563.62) which amount is equal to twenty-seven and 38/100 percent (27.38%) Qf the cost of the construction as called for in Phases I and" II of said Agreement. 25. Despite due demand therefore, Defendant School District has refused to pay for any portion of the costs associated with the improvement and constructiDn project pursuant to terms of said Agreement. 26. priorview has satisfied all of its contractual and other obligations to the City of Prior Lake and the School District. Further, priorview has satisfied all debts associated with the construction of the project with all subcontractor's and related parties. 27. As a result of the School Districts breach of their Agreement with priorview has suffered damages in excess of Fifty Thousand Dollars which damages will be proved with greater certainty in the trial of this matter. COUNT II UNJUST ENRICHMEN~ 28. priorview restates, reincorporates and realleges each and every matter or thing contained in the paragraphs 1-27 above, as though fully set forth herein. 29. Defendants School District and Prior Lake have been unjustly enriched at the expense and to the detriment of priorview because they have received, retained and benefited from the road construction project undertaken by priorview, such services having a reasonable value in excess of Fifty Thousand ($50,000) Dollars. -4- 30. As a result of the School Districts failure to pay priorview for the reasonable value of the services provided, priorview has been damaged and defendants have been unjustly enriched in an amount exceeding Fifty Thousand Dollars ($50,000.00). 31. School District and Prior Lake knowingly accepted the improvements to the road-way made by priorview and the Defendants have received and continue receiving the benefits of said improvements. Defendants School District and Prior Lake have been unjustly enriched by the construction of the road-way for which they have not paid any amount and it would be inequitable to allow said defendants to retain said benefits thereof without payment. COUNT III FRAUD AND MISREPRESENTATION 32. priorview restates, reincorporates and realleges each apd every matter, allegation or thing contained in paragraph 1-31 above, as though fully set forth herein. 33. Prior to the construction of the road-way, Defendants stated and represented to priorview that the existing road and its sub-grade had been adequately maintained and was in full compliance with city standards and regulations for unpaved roads. 34. Upon these representations made by the Defendants, Priorview agreed to credit the School District the sum of Twenty-five Thousand Two Hundred and Four and 70/100 Dollars ($25,204.7a). Defendant made said representations knowing them to be false and with the intent to deceive and defraud priorview of these material facts, or at the time the representations were made, the Defendants made the representations without knowing whether they were true or false. 35. The false representations were made with the intention to induce priorview to act in reliance upon them and the representations were made under such circumstances that priorview was justified in relying upon them. 36. priorview believed the representations and relied upon them whereby priorview agreed to give credit to the School District pursuant to the Agreement in the amount of Twenty-five Thousand, Two Hundred and Four Dollars and 70/100 ($25,204.70). -5- 37. priorview has suffered damages as a result of such reliance and action in an amount exceeding $25,204.70. This tlamage continued as priorview attempted to conform the unpaved road and the sub-grade to Defendant's standards, specifications and demands. WHEREFORE, priorview prays for judgement of the Court as follows: 1. On Count I, A. Judgement for priorview against School District and Prior Lake in an amount exceeding Fifty Thousand ($50,000.00) Dollars together with interest, disbursements, costs, expenses and reasonable attorney's fees. 2. On Count II, A. Judgement for priorview against School District and Priqr Lake in the amount exceeding Fifty Thousand ($50,000.00) Dollars together with interest, disbursements, costs, expenses and reasonable attorney's fees. 3. On Count III, A. Judgement for Priorview against School District and Prior Lake in the amount exceeding Twenty-five Thousand ($25,000.00) Dollars together with interest, disbursements, costs, expenses and reasonable attorney's fees. 4. As to all Counts A. Judgement for priorview against School District and Prior Lake for punitive damages in an amount exceeding Twenty-five Thousand ($25,000.00) Dollars. B. For the reasonable value of the benefits received by the School District and Prior Lake. C. For such other and further relief as the Court deem just and equitable. Dated: July~, 1993. ::~~11::!1. ~ Daniel J. y~~~ 3913 2100 Norwest Fi~~Cial Center 7900 Xerxes Avenue South Minneapolis, MN 55431 612-835-9001 Attorney for Plaintiff -6- Exhibit A As a follow up to the vorious I.,eet i('9~ er,,:: di:'cu:.~i(.rl~ w,,;,r. tl~V~ td',E'" plac~ with regard to read construction ;n ccnntctivn with tht Priofview PUD prcject th;$ will confirm that DEDICATiON OF RCAD~AY At the time Priorview provides the City of Prior LaKe with an ease~jer:t for tha extension of Five HaWKS planned as part of Phase II of the Priorview PUD Project, the Cistrict will d~dicate its private roadway to the public by means of . , ' an easement granted' t~ the City of Prior Lake. ' , ' COSTS OF PHASE I 'RESHAPING, SU~FhC!NG AND WALK~AYS .. 0'. The,School District will pay its propor~iona~e'share of Phase 1 resh~?ing, . . . surfacing as well as walkway costs so long a5.those costs are directly related,to . . , ". ~ ' . ' , '. . 'a . full compliance' with~ th~ .r'equirements of,-the' City of Pr.;or Lake, and ,so long as ' . . . ' : .. '. :. ' .' ~ ' . .... . . '. . . .. ., . the pro.ject is. advertised for pub lie bidding pursuant to Minnesota Statut"e.. The Di 5 tr i ct ~ s proport i ona tl; sha rea s det~~m i ned on the 'ba s: is of runn i Rg f o'ota ge' : : . , , .. . . . " , .. , ,. " . '.' '.', .::. . .... .., . . .will be "39.53S.. . ", ,". :.: ." . . . "::'.~:':'..<. : ::::<:';';'" .. . The 'costs ofihe. above mentioned Phase T improvements are presentiy.est imated .' . . ...'." '. .:. ."to be $40; 150.0Q. .'. The District. has. prell ious 1y pa id $2~ ,204 ~]O. for' th'e construct ion . .. . . . . 4 .. . . . o. . . of Fi.ve. Hawks ~venue in its present state. ::!hiS figure,' subject to verifi~ation by Priory; ew, sha 11 . be i nc 1 ud'~d' in the tota 1 cost of. the project and sha 11 be a credit towards the Oistrict'.s 39.53~ proportionate share. COSTS OF PHASE II RESHAPING SURFACING AND WALKWAYS The District will pay 50% of the Phase II roadway and walkway costs, subject to,'the bidding requirements set forth in Phase 1. Total Phase'II roadway ~nd walkway costs adjoining District. property are presently estimated to be, $10,900.00. PHASE I AND PHASE Ii STORM SEWERS AND DRAINAGE ... The District shall hove the right to review and approve engineering plans and -1- co~ts rel~t ing to Wiltcf dr,i lflll']l: prUJE-Ct::. tv tile e, f.('nt thc' l~;$trict ;!, required to share in tho$e co~ts. The Diltrict~ ~ro~ort;onat~~hdre of drainage costs has been deterim;ned to be 27.38~. The tota 1 cost of rt.,,~c dra ir.age projects effect ing th~ District is est ;mated to be $2,370.00. The total cost of Phase 11 drainage projects effecting the District is estimated to be $17,950.00. SCHOOL BUS DELAY ~riorview,acknowledges~hat the District's school bus schedule is critical to. t.he ~rderly operat'ion of .the District and that absolutely no delay in ;ng~ess or egresi to school propertj can be iolerated. Priorview intends to schedule construc- tion ar~und the bus schedule, and'with full understanding that this may cause some,;o . . .... ,,'..,., ..' . . , ' , . , ' . .. ...... ., " .. ' ,,' ,.....'. . contractor inconvenience Priorview warrants that the school busses, will 'encounter. " . . . no cpns truct i.cin re: a ted ~.e 1 ays.:: . .. .... · . ~.: ~..:;. :..'.': " . .. , ' . . , . . .',. .' . . . " . . ,....It is understood that. the dollar'amoun~s,used hereirrare.est';~tes only.'.. ~.' ': ;' , '. . . . .' ' ":. . . " ,'.... ~ ,', .. ~ .. .' " ~,. . . '. Ac.tua 1 costs ~i11 bebasedon unit costs .varie.d when fina 1 bid"s are accepted... . . . . . . Payment 'for each. 'project sha 11 be. made upon comp l~t ion of the proJect!' Pha.se' 1.1 . - : : .,.. ' ~ ". ..', .. '. .' . ," shall be completed within five 'years fr.om the .date' of this Agreement~' '. . .'. . . '. . . .The District hereb~ a~thor~zes'.Priorvi~w and/or the City of Prio~ lak~ to enter. on the property aod make improvements thereto in accordance wit~ plans and specifi- cations approved by the City of Prior Lake. et~ 9#vS " I Da~e e. c:!~ 02 9-;'-S?3 c ~ Lowell Ek Clerk Date ('y I'.. Kruse, Ed. O. lap.,intondont 0' Schooli -2- .. - ACKNOWLEDGMENT Plaintiff, by their attorney, acknowledges that cots, disbursements and reasonable attorney and witness fees may be awarded to Defendant if Plaintiff acted in bad faith, asserted a claim or defense that is frivolous and costly to the other party, asserted an unfounded position solely to delay the ordinary course of the proceedings or to harass, or committed a fraud upon the Court. Dated: JUly~, 1993. -7- ::~~~~--~~------- Daniel J. ~u1c, 13913 2100 Norwest ~ n cial Center 7900 Xerxes Avenue South Minneapolis, MN 55431 612-835-9001 Attorney for Plaintiff .. TO: FROM: DATE: SUBJECT: Glenn Kessel Dee Birch July 15, 1993 Summon from Bologna and Young Enclosed is a copy of the notice of summons with regard to the lawsuit between Priorvlew Umited Partnership and the School District which Frank requested I send to you. If you have any questions please contact Frank. c.~ DBMEM3.WRT 4629 Dakota St. S.E., Prior Lake, Minnesota 55372 I Ph. (612) 447-4230 I Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLDYER