4.5 SR 04-05-2021
Request for Action
To Item Number
Mayor and City Council 4.5
Agenda Section Meeting Date Prepared by
Consent April 5, 2021 Cal Portner, City Administrator
Item Description Reviewed by
City of Elk River, Bolton & Menk, Inc., and Peter Beck, City Attorney
Rice Lake Construction Group Agreement to
Reviewed by
Extend Statutes of Limitations and Repose
Justin Femrite, Public Works Director
Action Requested
Approve, by motion, an agreement between the City of Elk River, Bolton & Menk, Inc., and Rice Lake
Construction Group.
Background/Discussion
The City of Elk River is challenging the construction and design of certain parts of the Wastewater Treatment
Facility. Prior to any litigation, the parties are attempting to resolve the dispute through mediation.
The city and the parties have participated in two rounds of mediation to date. The parties require additional time
to conclude mediation. To preserve the statutes of limitation, in the event mediation is unsuccessful and litigation
is needed, the Council should approve this agreement.
Financial Impact
N/A
Mission/Policy/Goal
N/A
Attachments
Agreement
The Elk River Vision
A welcoming community with revolutionary and spirited resourcefulness, exceptional
service, and community engagement that encourages and inspires prosperity.
Updated: August 2020
Agreement #21-____
AGREEMENT TO EXTEND STATUTES OF LIMITATIONS AND REPOSE
This Agreement to Extend Statute of Limitations and Repose (the “Agreement”) is
entered into by and among the City of Elk River (the “City”), Bolton & Menk, Inc. (“BMI”), and
Rice Lake Construction Group (“RLCG”) (collectively, the “Parties”).
WHEREAS, a pending dispute exists involving the City, BMI, and RLCG relating to the
design and construction of the City’s Wastewater Treatment Facility Improvements Project (the
“Project”).
WHEREAS, BMI served as the professional services consultant on the Project.
WHEREAS, RLCG served as the general contractor on the Project.
WHEREAS, the City alleges that BMI and RLCG failed to fulfill all obligations related
to the Project including allegations that certain screw presses installed during the Project do not
comply with the Project’s specifications.
WHEREAS, on the one hand, the City maintains it has actionable claims against BMI
and RLCG, including but not limited to claims for negligent construction, negligent design,
standard negligence, breach of contract, breach of express warranty, and breach of the implied
warranty of fitness for purpose, and on the other hand, RLCG and BMI each expressly denies
any liability to the City or each other arising out of or related to the foregoing allegations and
claims (the “Dispute”).
WHEREAS, the Parties have agreed to attempt to resolve the Dispute in pre-litigation
mediation before a mutually agreed upon mediator and would like to defer for the time being the
commencement of further proceedings in the hope that a resolution can be reached with respect
to the City’s claims against BMI and RLCG, including but not limited to claims for negligent
construction, negligent design, standard negligence, breach of contract, breach of express
warranty, and breach of the implied warranty of fitness for purpose.
WHEREAS, so as to avoid the necessity of commencing a legal lawsuit at this time, the
Parties are willing to extend any and all statutes of limitation and repose relating to the Dispute
from the date of this Agreement up to and including the 90th day after the date of this
Agreement.
NOW, THEREFORE:
1. For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereby stipulate and agree that any and all statutes of limitation or
repose relating to the Dispute are hereby extended from the date of this Agreement up to and
including the 90th day after the date of this Agreement (the “Tolling Date”). The period from the
date of this Agreement through the Tolling Date may not be relied upon to support any defense
based on any and all statute of limitations, repose, laches, or waiver. However, the Parties
explicitly reserve all defenses available to them as of the date of this Agreement and do not waive
any defenses available to them as of the date of this Agreement. Nothing herein shall be construed
as a shortening of any relevant statute of limitation or repose.
2. The persons signing this Agreement represent and warrant that they have authority
to execute this agreement on behalf of the listed signatories.
\[SIGNATURE PAGE TO FOLLOW\]
2
Agreement #21-____
th
Dated this 5 day of April, 2021.
CITY OF ELK RIVER
John J. Dietz
Mayor
City of Elk River
CITY OF ELK RIVER
Tina Allard
City Clerk
City of Elk River
BOLTON & MENK, INC.
7533 Sunwood Drive NW
#206
Ramsey, MN 55303
By:
Print Name:
Title:
RICE LAKE CONSTRUCTION GROUP
22360 County Road 12
PO Box 517
Deerwood, MN 56444
By:
Print Name:
Title: