Preview
FILED
DALLAS COUNTY
8/27/2019 3:51 PM
FELICIA PITRE
DISTRICT CLERK
Kevin Molden
CAUSE NO. DC-18-02358
MUSEUM TOWER, LP § IN THE DISTRICT COURT OF
Plaintiff §
§
v. §
§
AUSTIN BUILDING COMPANY § DALLAS COUNTY, TEXAS
Defendant and Third Party Plaintiff §
§
v. §
§ 162nd JUDICIAL DISTRICT
EGR CONSTRUCTION, INC. §
Third Party Defendant §
EXHIBITS A-F – PART 1
Exhibit A
Response Pg. No. 38
CAUSE NO. DC-18-02358
MUSEUM TOWER, LP § IN THE DISTRICT COURT OF
Plaintiff §
§
V.
§
§
AUSTIN BUILDING COMPANY §
Defendant and Third Party Plaintiff § DALLAS COUNTY, TEXAS
§
V.
§
§
EGR CONSTRUCTION, INC. §
TbirdParty Defendant §
162'” JUDICIAL DISTRICT
AFFIDAVIT OF JENNIFER MOSS LEPORIS
STATE OF TEXAS §
COUNTY OF DALLAS g
BEFORE ME, the undersigned authority, on this day personally appeared Jennifer Moss
LePoris, who is personally known to me, and after being first duly sworn according to law upon
her oath, deposed and stated as follows:
1. “My name is Jennifer Moss LePoris. I am over the age of eighteen (18) years, am
of sound mind, and am fully competent to testify in all matters stated herein. I have never been
convicted of a crime, and I am fully competent to make this affidavit. I have personal knowledge
of the facts stated herein, and they are all true and correct.
2. I was hired by Museum Tower, LP (“Museum Tower”) to serve as Finish
Coordinator for the Museum Tower Condominium Project (the “Project”) from approximately
September 2011 until approximately June 2016. In this role, I had responsibility for
communicating With unit purchasers regarding standard material selections and upgrades in their
units, performing punch list walks With Austin Building Company (“Austin”) and unit
purchasers, requesting that Austin perform correction or warranty work after Austin’s final
AFFIDAVIT OF JENNIFER MOSS LEPORIS — Page 1
Response Pg. No. 39
completion of the Project, and coordinating the performance of warranty work in the units after
Austin’s final completion of the Proj ect.
3. Prior to working at the Project, I worked on the following residential
condominium projects: W Dallas Residences, The House (in Dallas), The Terrace (in Dallas),
and W Austin Residences. My job responsibilities on such projects were very similar to those on
the Project. Specifically, I coordinated material selections, performed punch list walks, and
participated in warranty work. After leaving the Project, I continue working on residential
condominium projects performing similar job duties.
4. Prior to Austin’s final completion of the Proj ect, I participated in punch list walks
for each of the units contained within the Project. During these punch list walks, I would identify
minor issues for repair by Austin or its subcontractors prior to final completion. A representative
of the Project architect also participated in the punch list walks. At the time these punch list
walks were performed, there were over one hundred individual condominium units in the
building.
5. While performing punch list walks prior to Austin’s completion of the building, I
did, on a few isolated occasions, see instances where the metal edge banding separated from the
wooden kitchen cabinet doors and drawers (“delamination”). I would estimate that I saw this
issue in less than five units.
6. During the punch list process, there were thousands of issues identified and
repaired across the building. Austin directed its subcontractors to repair the issues, and then we
would perform re-walks to confirm all items were corrected. For instance, Austin and its
subcontractors corrected numerous issues related to paint, caulk and grout, scratches and chips in
materials, and countless other issues. At the time I performed punch list walks with Austin, it
AFFIDAVIT 0F JENNIFER MOSS LEPORIS — Page 2
Response Pg. No. 4O
was not my understanding or belief that the cabinet delamination issue may extend to all cabinets
in the building. I was never told by an Austin representative — or anyone else — that the few
delamination issues were different or more significant than the thousands 0f other punch list
items repaired. I was never told by an Austin representative — or anyone else — that the
delamination issues may extend to all cabinets in the building.
7. At the time I performed punch list walks with Austin, it was my understanding
and belief that the cabinet delamination issue was isolated t0 the few units in which it was seen,
and that all such issues were repaired prior to final completion. I formed this understanding
based on the fact that we did not see the issue in enough units to cause an alarm.
8. On February 25, 2013, I sent the email attached hereto as Exhibit A-1. Exhibit
fl is a true and correct copy of my email. In this email, I identified a few items that may
require a warranty call to Austin. However, I did not believe, and had n0 reason to believe, that
any 0f these items would impact all or a significant number 0f the units. They were simply items
we may run into in a few, isolated instances that would require the original subcontractor to
perform repair work while the homes were under warranty.
9. In September of 2013, Austin contacted EGR Construction, Inc. (“EGR”)
regarding the delamination. A true and correct copy of the email, on which I was copied, is
attached hereto as Exhibit A-2.
10. By December of 2013, metal edge banding delamination had occurred in over
thirty units. At this time, EGR had begun performing warranty work at the building almost
monthly. Additionally, by December of 2013, I understood that the delamination issue likely
impacted all or a large number 0f the units in the building that had aluminum edge banding.”
AFFIDAVIT OF JENNIFER MOSS LEPORIS — Page 3
Response Pg. No. 41
(mmmmmj ?W—
Jennifl/I oss flePoris
SWORN TO AND SUBSCRIBED BEFORE ME on this Z
77% day of August, 2019.
Notai‘fPublic in and foréfie State of Texas
r
Notary Public, State of Texas
Notary ID 387933-3
‘k
My Commission Exp. 01-08-2021 .-
AFFIDAVIT OF JENNIFER MOSS LEPORIS — Page 4
Response Pg. No. 42
Exhibit A-l
Response Pg. No. 43
From: Jenny Moss
Sent: Monday, February 25, 2013 4:17 PM CST
To: Duane Bates; CPIummer@austin-ind.com
CC: TSyverson@austln-ind.com; NSimpson@austln-ind.cam; ASyverson@Austin—Ind.com; Lyle Burgin;
Jeff@andresconstructian.ccm
Subject: RE: Warranty Work
Casey is the first point of contact after an engineer goes up. Basically most anything is under warranty
for a year after closing except for wear and tear items regarding finishes, over flushing of items in a
toilet, light bulb replacement, non-disposal items stuck in a disposal and basically common sense stuff
really.
lforesee pocket doors sticking, kitchen drawers not closing correctly, balcony door locks not locking,
plumbing dripping, bathtub drain stops getting stuck, glass doors sagging, metal edge banding at kitchen
cabinets coming off, motorized shades not working, wood at dishwashers inside fading due to steam,
and electrical outlet tripping orjust having never worked,
Jenny Moss
Interior Finish Coordinator
Museum Tower
2149541234: x202
From: Duane Bates [maiIto:duane.bates@premiercommunities.net]
Sent: Monday, February 25, 2013 3:56 PM
To: Jenny Moss; CPIummer@austin-ind.com
Cc: TSyverson@austin—ind.com; NSimpson@austin—ind.com; ASyverson@Austin-Ind.com; Lyle Burgin;
Jeff@andresconstruction.com
Subject: RE: Warranty Work
ls Casey the first point of contact to determine if it’s a warranty item? Or, is there a list of what is under
warranty?
Duane Bates
General Manager
n museum tower
1918 Olive Street, Dallas, Texas 75201
Direct: 214.276.0099 Mobile 214.930.5732
|
From: Jenny Moss lmailto:jmoss@museumtowerdallas.coml
Sent: Monday, February 25, 2013 3:42 PM
To: Duane Bates; Casey Plummer (CPlummer@austin-ind.com)
Cc: Thomas Syverson (TSflerson@austin-ind.com); Nick Simpson (NSimpson@austin-ind.com); 'Al
Syverson' (ASflerson@Austin-Ind.com); Lyle Burgin; Jeff@andresconstruction.com
Subject: Warranty Work
Hello.
MT003970
Response Pg. No. 44
We need to have a discussion aboutthis especially before l am gone. lknow both Duane and | are now
the facilitators and when am gone we need
| to have a system in place. Below is what think the
|
protocol is so everyone please read through and let me know if anyone feels differently.
1. Buyer should call the front desk to give them the warranty item in question.
2. The front desk then gives the item or items to the maintenance team who will do the following:
a. Know the issue cannot be resolved easily and contacts Casey Plummer.
b. Goes up to see the issue, if it is simple fix/ repair do it then.
c. If not able to fix it then verify if it is a warranty issue. If NOT a warranty issue lets the buyer know
and can ask them to set up a repair person to come by.
d. If not able to fix and it IS a warranty issue contacts Casey Plummer to get a repair person on
site.
3. Casey Plummer with ABC then finds out when the repair person is available and coordinates through
the front desk when the buyer will allow work.
4. When the work is scheduled a representative from ABC will escort the repair person up to the condo.
The ABC person will need to gain access through the front desk.
5. lfthere is ever a discrepancy in the warranty item, then in my absence Lyle Burgin will be the MT
negotiator with ABC.
Jenny Moss
Interior Finish Coordinator
Museum Tower
21 l2 Flora Street
Dallas.TX 75201
Phone: 214,954. I234 x 202
Fax: 2 |4,954.996~1
Email: jmoss@museumtowerdallas‘com
www.museumtowerdallas.com
‘
I
museum tOWeI
MT003971
Response Pg. No. 45
Exhibit A-2
Response Pg. No. 46
Frum: Nick Simpson
Sent: Monday, September 16, 2013 3:56 PM CDT
Tu: NOAH HUTCHENS; Terry Malmberg
CC: Steve Fortmeier; Jenny Leporis (Moss)
Subject: Fwd: Can yau see if EGR can bring someone out for the day.
Attachments: imagejpeg, image.jpeg, imagejpeg, imagejpeg, image001.png
Guys,
Ihave been getting a ton 0f calls about the edge banding in all of the units coming off. Unit 3 1 04
in palticularis extremely bad. Up until now, Henry with museum tower or myself has been
fixing them. This is becoming too much 0f a chore t0 d0 because of the work load that has come
upon us. I need to see ifyou can get a man out here to go from unit t0 unit and fix the edge
banding that is falling off so it does not happen again. The museum tower staff brings tours
through every day showing different floor plans and there is always edge banding falling off
which looks poorly for us. What sort of adhesive did you use that this is becoming such an issue?
Please let me know if you can get someone out here. Please see attached pictures.
E
E
E
E
Thanks,
Nick Simpson
Austin Commercial
(972) 672—13 80
Begin forwarded message:
From: "Jenny LePoris (Moss)"
Date: September 16, 2013, 3:34:48 PM CDT
To: "Nick Simpson (NSimpson@austin-ind.com)" , "'Steve
Fortmeier' (sfort@Austin-Ind.com)"
Subject: Can you see if EGR can bring someone out for the day.
MT004644
Response Pg. No. 47
Jenny LePoris
Interior Finish Coordinator
Museum Tower
l918 Nonh Olive Street #602
Dallas. TX 75201
Phone: 214.954.1234 x 202
Fax: 2149549964
Email: jleporiS(tgmuseumtowcrdallas.com
www.museumtowerdallas.com
jEI
MT004645
Response Pg. No. 48
M T w 4 64 8
Response Pg. No. 49
MTIIMN?
Response Pg. No. 50
MID D4348
Response Pg. No. 51
M T M 4 a 4 n.
Response Pg. No. 52
Exhibit B
Response Pg. No. 53
CAUSE NO. DC-18-02358
MUSEUM TOWER, LP § 1N THE DISTRICT COURT 0F
Plaintiff §
§
v. §
§
AUSTIN BUILDING COMPANY §
Defendant and Third Party Plainnfi § DALLAS COUNTY, TEXAS
§
v. §
§
EGR CONSTRUCTION, INC. §
Third Pamperendant §
162““ JUDICIAL DISTRICT
AFFIDAVIT 0F JOSEPH A. SORRELLI
STATE 0F fl/fll/
I”.
WKC §
§
COUNTY 0F /)
The Owner and Contractor agree as follows.
ELECTRONIC COPYING Of any
portion of this AIAE Document
to another electronic file is
prohibited and constitutes a
violation of copyright laws
as set forth in the footer of
this document.
AIA Docmaflt A102" - 2007 (fumerly A111" - 1997). Copyright a 19‘20, 1925, 1951, 1958. 1961. 1963, 1967, 1974, 1978, 1987, 1997 and 2007
by The American Institute of Architects. A11 rights reserved. WARNING: Ibis ALA Document is protected by ILS. Copyright Law and
International Treaties. Unauthorized reproduction c: distribution at this AIA Document, or any goxtion ct it; may result in severe civil
and cr'znina]. penalties. and will be prosecuted to the maximum azunt pcssible under the Jaw. This draft was produced by AXA software at
05:52:40 on 03/11/2010 under Order Nc.4271329184_1 which expires on 06/28/2010, and is no: for resale.
Use: Notes: MT 06606510‘3532’
Response Pg. No. 66
TABLE OF ARTICLES
1 THE CONTRACT DOCUMENTS
2 THE WORK 0F THIS CONTRACT
3 RELATIONSHIP 0F THE PARTIES
4 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
5 CONTRACT SUM
6 CHANGES IN THE WORK
7 COSTS T0 BE REIMBURSED
8 COSTS NOT TO BE REIMBURSED
9 DISCOUNTS, REBATES AND REFUNDS
10 SUBCONTRACTS AND OTHER AGREEMENTS
11 ACCOUNTING RECORDS
12 PAYMENTS
13 DISPUTE RESOLUTION
14 TERMINATION OH SUSPENSION
15 MISCELLANEOUS PROVISIONS
16 ENUMERATION 0F CONTRACT DOCUMENTS
17 INSURANCE AND BONDS
ARTICLE1 THE CONTRACT DOCUMENTS
The Contract Documents consist of this Agreement, Conditions of (he Contract (General, Supplementary and other
Conditions), Drawings, Specifications, Addenda issued prior to execution of this Ag‘eement, other documents listed
in this Agreement and Modifications issued after execution 0f this Agreement, all of which form [he Contract, and
are as fully a part of the Contract as if attached Io this Agreement 01' repeated herein. The Contract represents the
entire and integrated agreement between [he parties hereto and supersedes prior negotiations, representations or
01' oral. The controlling order of precedence in the event of conflicts between the
agreements, either written
documents forming the Contract is set forth in the General Conditions. The terms “Contract" and “Agreement" used
in the Contract Documents can be used interchangeably to mean this Agreement while the Icrm Contract Documents
refers lo [he items set forth above.
ARTICLE 2 THE WORK 0F THIS CONTRACT
§ 2.1 The Contractor shall fully execute the Work described in the Contract Documents, except as specifically
indicated in the Contract Documents t0 be the responsibility of others.
§ 2.2 During Ihc performance 0f [he Work, the Contractor shall, consistent with [he requirements of Paragraph 3.9 of
[he General Conditions. keep a competent superintendent at the Project site, fully authorized lo act on behalf of the
Contractor. Written notice from the Owner or thc Architect lo such superintendent in connection with defective
Work 01' instructions for performance of the Work shall bc considered notice of such issues to the Contractor.
RIA Docmnent A102“ < 2007 (fomerly A111" - 1997). Copyright o 1920. 1525, 1951, 1958, 1561, 1963, 1967. 19-74, 197B, 1587, 1997 and 2007
by 'Ihe American Institute of hrehitects. 111 rights reserved. WERNING: This AIA Document is pzotected by v.3. Capyright Law and
Innuemau’onal Treaties. Unauthorized reproduction or distribution 0E this AIA Document. o: any portion oi it. may result in severe civil
and criminal penalties. and will be prosecuted ho Lbe maximum extent gosaible under the law. This dmft was produced by AIR software at
09:52:40 on 03/11/2010 under Order No.4271329184_1 which axpires on 06/28/2010, and 1'5 not fog resale‘
User Notes: MT 0mg0632)
Response Pg. No. 67
ARTICLE 3 RELATIONSHIP OF THE PARTIES
§3.1 The Contractor accepts the relationship oftrusl and confidence established by this Agreement and covenants
with the Owner to cooperate with the Architect and exercise lhe Contractor’s skill andjudgment in furthering lhe
interests of the Owner; to furnish efficient business administration and supervision; to furnish at all times an
adequate supply of workers and materials; and to perform the Work in an expeditious and economical manner
consistent with the Owner’s interests. The Owner agrees lo furnish and approve, in a timely manner, information
required by the Contractor and lo make payments to the Contractor in accordance with the requirements of the
ContractDocuments. No fiduciary relationship is intended by this provision of the Agreement.
§3.2 No notice, decision, consent, approval, agreement, or directive which [he Owner is authorized or required to
make or provide under the Contract Documents shall be effective or binding on the Owner unless made or
communicated by or Owner’s Representative unless Owner has expressly delegated in writing [he
to the designated
authority to some other named person, to make or communicate such notice, decision, consent, approval, person,
agreement or directive. Owner reserves the right to change its designated representative at any time by written
notice to Contractor executed by an officer of the Owner.
ARTICLE 4 DATE 0F COMMENCEMENT AND SUBSTANTIAL COMPLETION
54.1 The dale of commencement 0f the Work shall be fixed in a notice to proceed issued by [he Owner.
(Insert rhe dare Ofcommencemenr, [fir diflersfrom rhe dare 0f thix Agreemenr or, ifapplicable, stare rhar rhe dare
will be fixed in a notice r0 proceed. )
((3 ))
(€ ))
§4.2 The Contract Time shall be measured from the date of commencement.
§4.3 The Contractor shall achieve Substantial Completion of the Work as set forth in Exhibit C (the “Substantial
Completion Deadlines”)
(Insert number ofcalendardays. Alternatively, a calendar date may be used when coordinated with rhe dare of
connnencemenr. Ifappmpriare, insert I'equirementsfor earlier Substantial Completion ofcerlain porrions 0f the
Work.)
« See ExhibitC »
Portion ofWork Substantial Completion date
,
subject to adjustments of this Contract Time as providedin the Contract Documents.
(Insert provisions, ifan)’, for liquidated damages relating tofailure r0 achieve Subsranrial Completion on time, 0r
for bonux paymenrxfor early completion 0f rhe Work.)
The parties agree that the damages that Owner would suffer if the Contractor does not meet the Substantial
Completion Deadlines are difficult to quantify and therefore agree to the following liquidated damages as a
reasonable approximation of [hose damages. Contractor shall have a 30 day grace period after the scheduled final
Substantial Completion Deadline shown on Exhibit C before liquidated damages will be charged. For every day
30 days that Contractor does not achieve final Substantial Completion, Contractor
after the first shall pay Owner
$20,000a day as liquidated damages and not as a penalty. Liquidated damages shall be capped at $1,800,000.00.
ARTICLE 5 CONTRACT SUM
§5.1 The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor’s performance of the
Contract. The Contract Sum is the total 0f the Cost of the Work as defined in Article 7, [he Contingency (if utilized),
the General Conditions Costs, and the Contractor’s Fee‘
AIA Document A102“ - 2007 (fomrly A111“ - 1997). Copyright 9 1320, 1925, 1951. 1953, 1261, 1963, 1967, 1974, 197a, 1987, 1597 and 2007
by The American institute of Architects. All rights reserved. WARNXNG: This AIA Document is protected by v.3. Copyright Law 3d
International Treaties‘ Unauthorized reproduction o: distnbution of this P.IA Document, or any portion of it, may result: in seveze czvil 3
and criminal penalties, and will be prosecuted to the maxamum extent possibl: under the law. This draft was producm by AIA software at
09:52:40 on 03/11/2010 under 0rder No.4271329184._1 which expires on 06/28/2010. and is not for resale.
vsu‘ Nata: :
MT mmoasz)
Response Pg. No. 68
§ 5.1 .1 The Contractor’s Fee:
(Stare a lump sum. percenrage 0f Cosr ofrhe Work 0rorherprovisionfar determining rhe Conrracror’s Fee‘)
« The Contractor’s Fee is fixed al $2,567,500'M1ich equates to 2.3% ofthe Im'lia] GMP. . »
§ 5.1.2 The method of adjustment of the Contractor’s Fee for changes in the Work:
« The Contractor‘s Fee
shall be fixed at $2,567,500 and shall not be subject to reduction by any savings or decrease
in [heCost of lhe Work or increased by any increase in the Cost of the Work, except in relation to any
customization of condominium units by the purchasers of such units for which Contractor shall be entitled to
additional Contractor’s Fee as set forth in Exhibit B.»
§ 5.1 .3The Contractor sh‘all be entitled to payment for General Conditions costs as s‘et forth in Exhibit A.
a 5)
§ 5.1 .4 For any costs outside of [he lump sum General Conditions, rental rates for Contractor-owned equipment shall
not exceed the standard rate paid at the place of the Project as set forth in Exhibil T.
§5.1.5 Unil prices, if any: to be set by Change order.
(Identifiv and stare rhe unit price: srare rhe quantify Iimirariolls, ifany, r0 which rhe uni! price will be applicable.)
Item Units and Limitations Price Per Unit ($0.00)
§5.2 GUARANTEED MAXIMUM PRICE
§ The Initial GMP for [he Project is $114,197,950. It is the intent of the parties [hat the Final GMP shall not
5.2.1
exceed $1 14,197,950 unless the Owner makes changes that increase [he scope of work for the Project or [he
issuance ofthe For Construction documents is delayed more than 20 days after July 20, 2010. Contractor shall
provide [he Fina] GMP proposal Io Owner in writing
upon completing the Buyout process as described in Exhibit
B, but in 20 days after issuance of [he For Construction documents. The Contract Sum is
n0 evenl later lhan
guaranteed by the Contractor not to exceed Final GMP, subject to additions and deductions by Change Order as
provided in the Contract Documents. Such maximum sum is referred to in the Contract Documents as the
Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid
by the Contractor without reimbursement by the Owner.
{Insert specific provisions ifrhe Contracror is r0 parricipare in any savings. )
« At the completion of the Project, the GMP shall be reduced by any unused contingency amounts, unused
Allowance amounts, and unused amounts allocated lo [he excess liability insurance before the savings shall be
calculated. Contractor shall be entitled to 25% of any such savings‘ »
§ 5.2.2The Guaranteed Maximum Price is based on the following alternates, if any, which are described in the
Contract Documents and are hereby accepted by the Owner:
(Srare rhe numbers 0r Other identificarion ofaccepred alrernares. Ifbidding arpropasal documenrspermit rhe
Owner r0 accept other alternates subsequent r0 the execution 0f rhis Agreement, (mach a schedule 0f such orher
alrernares showing rhe amaunrfor each and rhe dare when rhe amount expires.)
« See Exhibit R »
§5.2.3 Allowances included in the Guaranteed Maximum Price, if any are set forth in Exhibit D and Exhibit R:
(Identifir allowance and stare exclusions, if any, fi'om rhe allowance price. )
Item Price
§5.2.4 Assumptions, 1f any, on wlnch the Guaranteed Maxumum Prnce Is based:
AKA Docummt 5102" - 3007 (faxmetly A111” - 1557)‘ Copyright u 19204 1925, 1951, 1958. 1961, 1963, 1967, 1974, 1978, 1957, 1997 and 200']
International Txeaties. Unauthorized reprsduction or distribution o: this m
by The American Institute of Architects. A11 rights reserved. WARNING: This ALA Document is protected by 0.5. Ccyyright Law and
Document, or any portibn oi it. may result in severe civil
and criminal panalties. and will be prosecuted to the maximum extent possible under the law. This draEt was produced by AKA s-ftwaxe at
4
09:52:40 on 03/11/2010 under Order No~4271329184_1 which expires on 06/28/2010. and i‘s nor. Eur resale.
use: Notes: MT omgqnusaz)
Response Pg. No. 69
Contractor a'sSumptio'ns and qualifications incmded with
4t {113 Guaranteed Maximum Price are sCt forth in EXhibit
K. »
§ 5.2.5 To the extent that lhc Drawings and Specifications are anticipated to require further development by the
Architect, thc Contractor has provided in the Guaranteed Maximum Price for such further development consistent
with the Contract Documents and reasonably inferabletherefrom. Such further development does not include such
things as changes in scope, systems, kinds and quality of materials, finishes or equipment, all of which, if required,
shall be in corporated by Change Order.
§5.2.6 The Initial Guaranteed Maximum Price includes (and (he schedule of values reflects) a Contingency in the
amount of $1 500,000 subject lo increase lo a maximum of$1,800.000 as set forth in Exhibit B. The Contingency
may be used (o cover the following but shall not include any overhead or mark up:
l. Costs for additional, unanticipated charges by Subcontractors resulting from omissions in the bid
packages;
2. Costs for acceleration or re-sequencing the Work (including extra manpower 01' overtime charges
to complete work out of sequence or on an accelerated basis), provided (hatContractor is not
otherwise entitled to a change order for acceleration 0r re—sequencing;
3. Cosls for repairing or re—performing Work that is defective or not in conformity wilh the Contract
Documents, provided that (i) the costs are not recoverable through insurance, (ii) the Work is n01
re—performed by Subcontractors al no cost to Contractor, and (iii) [he defeclive 0r non—conforming
Work results from events beyond the control of Contractor 01‘ Subcontractors or from mere
inadvertence 0r negligence by Contractor 0r Subcontractors and n01 gross negligence or
intentional actions; or
4. Additional costs lo perform lhe Work not arising from errors or omissions by the Contractor, and
not relating lo defective Work (which is covered by subsection .3, above),
§5.2.6.1 Use ofContingency by the Contractor shall be subject 10 [he prior written approval of Owner, such
the
approval not (o be unreasonably withheld. The Contingency is not intended to be used by the Owner for items that
are the subject of a Change Order, scope changes or for changes in the Work.
§5.2.6.2 The Contractor shail indicate in monthly payment applications the previously approved usc of any funds
from the Contingency and costs shall in a log updated monthly and submitted for the Owner’s
be tracked
representative’s review. Al final completion of the Work any unused contingency shall not be considered as
Savings.
ARTICLE 6 CHANGES IN THE WORK
§6.1 Adjustments t0 the Guaranteed Maximum Price 0n account ofchanges in the Work may be determined by any
of the methods listed in the General Conditions.
§6.2 In calculating adjustments to subconLracls (except [hose awarded with the Owner's prior consent on the basis of
cost plus a fee), the terms “cost” and “fee” as used in the General Conditions and lhe term “costs” as used in the
General Conditions shall have the meanings assigned lo them in the General Conditions and shall not be modified
by Articles 5, 7 Agreement. Adjustments to subcontracts awarded with the Owner‘s prior consent on
and 8 of this
the basis of cost plus a fee shall be calculated in accordance with the terms of those subcontracts.
§ 6.3 In calculating adjustments lo the Guaranteed Maximum Price, lhe terms
“cost” and “costs" as used in the
above—referenced provisions oflhc General Conditions shall mean the Cost ofthe Work as defined in Article 7 of
this Agreement and the term “fee” shall mean [he Contractor’s fixed Fee as defined in Section 5.1.1 oflhis
Agreement.
§6.4 [Intentionally Deleted]
AIA DDcument A102” f 2007 (Eometly A111" - 1597). Copyright a 1920', 1925‘ 1951, 19581 1951. 1963, 1967, 1974, 197E, 1987, 1997 and 2M7
by The American Institute of Architects. A11 rights reserved. WARNING; This LIA Document is protected by ms. Copyright Law and
International Treaties. Unauthorized reproduction or distribution oi this AIA Document. or any vartiou ct it. may result in severe :iv 1
and criminal penalties‘ and will be prosecuted to the maximum extent possfble under the law. This draft was produced by AIA software at
09:52:40 on 03/11/2010 under Order No.427132918l»_1 which expires an 06/28/2010. and is not for resale.
User Notes: MT OOWUBSH)
Response Pg. No. 70
ARTICLE 7 COSTS TO BE REIMBURSED
§7.1 COST OF THE WORK
§ 7.1.1 The term Cost of the Work and any other costs payable lo Contractor under [his Agreement shall mean those
reasonable costs necessarily incurred by the Contractor in [he proper performance 0fthe Work. Such costs shall be
at rates not higher than the standard paid at the place of the Project except with prior written consent of the Owner.
The Cost ofthe Work shall include only the items set forth in this Article 7. Thoseitems listed in [his Anicle 7 (hat
are General Conditions costs shall be limited as set forth elsewhere in this Agreement.
§ 7.1.2 Where any cost is subject 10 the Owner’s prior approval. the Contractor shall obtain this approval prior to
incurring lhc cosL The panics shall endeavor [o identify any such costs prior Io executing this Agreement.
§ 7.2 LABOR COSTS
§ 7.2.1 Wages ofconstruction workers directly employed by the Contractor to perform the construction of [he Work
at the site or, with the Owner's pn'or approval, at off-sile workshops consistent wilh local labor rates.
§7.2.2 Wages or salaries ofthe Contractor’s supervisory and ad ministralive personnel are included in the lump sum
General Conditions amount sel fonh in Exhibit A.
(If it is intended that the wages 0r salaries ofcertain personnel stationed at the Contractor'sprincipal 0r other
ofiices shall be included in the Cost ofrhe Work, identify in Arn'cle 15, the personnel r0 be included, whetherfor all
oronly part offheir time, and the rates a! which their time will [1e Charged t0 rhe Work.)
§7.2.3 Wages and salaries of [he Contractor’s supervisory or administrative personnel engaged at factories,
workshops or on (he road, in expediting [he production or transportation of materials or equipment required for [he
Work, are included in the lump sum General Conditions amount set forth in Exhibit A.
§ 7.2.4 Costs paid or incurred by [he Contractor for taxes, insumuce, contributions, assessments and benefits required
by law or collective bargaining agreements and, for personnel not covered by such agreements, customary benefits
such as sick leave, medical and health benefits, holidays, vacations and pensions, provided such costs are based 0n
wages and salaries included in the Cost ofthe Work under Sections 7.2.1 shall be billed at [he fixed burden rate set
forlh in Exhibit K and under Sections 7.2.2 through 7.2.3.5uch costs are included in the lump sum General
Conditions amount set fonh in Exhibit A.
§7.2.5 Bon uses, profit sharing, incentive compensation and any other discreLionary payments paid to anyone hired
by the Contractor or paid to any Subcontractor or vendor, with the Owner‘s prior approval in accordance are
included in the lump sum General Conditions amount set forth in Exhibit A.
§ 7.3 SUBCONTRACT COSTS
Payments made by [he Contractor to Subcontractors in accordance with the requirements ofthe subcontracts.
§7.4 COSTS 0F MATERIALS AND EQUIPMENT iNCORPORATED IN THE COMPLETED CONSTRUCTION
§ 7.4.1 Costs, including transportation and storage, of materials and equipment incorporated or lo be incorporated in
the completed construction.
§7.4.2 Costs of materials described in the preceding Section 7.4.1 in excess oflhose actually installed to allow for
reasonable waste and spoilage. Unused excess materials, ifany, shall become the Owner‘s properly at the
completion of the Work or, at the Owner’s option, shall be sold by lhe Contractor. Any amounts realized from such
sales shall bc credited to the Owner as a deduction from (he Cost oflhe Work.
§7.5 COSTS 0F OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND RELATED ITEMS
57.5.1 Costs oftransportation ,
storage, installation, maintenance, dismantling and removal of materials, supplies,
temporary facilities, machinery, equipment and hand tools not customarily owned by construction workers that are
provided by the Contractor at the site and fully consumed in the performance ofthe Work. Costs of materials,
supplies, temporary facilities, machinery, equipment and tools that are not fully consumed shall be based on the cost
or value ofthe itcm at Ihe time it is first used on the Project site less the value of the item when it is no longer used
at [he Project site. Costs for items not fully consumed by lhe Contractor shall mean fair market value.
An Document A102” < 2007 (formerly 1:111” w 1997). capyrighc D 1920, 1925. 1951, 1958, 1S61, 1963. 1967. 1974, 157s, 1987, 1997 and 2007
by The American Institute of Architects. A11 rights reserved‘ WARNING: This m
Document is protected by v.5. Copyright Law and
Intaznational Treatiel. Unauthorized reproduction 0r distribution at this RIA Document, o: any portion oi it, may result 1n aevaze civil
and crimnal penaltxes, and will be prosecuted to the maximum extent possible under the law. 'mis draft was produced by AIA software art
09:52:40 on 03/11/2010 under Order No.427132'9184_1 which expires on 06/2E/2010, and 1‘s not for resale.
User Notes: MT omsooszz)
Response Pg. No. 71
§ 7.5.2 Rental charges for temporary facilities, machinery, equipment and hand tools not customarily owned by
construction workers [hat arc provid
Preview
FILED DALLAS COUNTY 8/27/2019 3:51 PM FELICIA PITRE DISTRICT CLERK Kevin Molden CAUSE NO. DC-18-02358 MUSEUM TOWER, LP § IN THE DISTRICT COURT OF Plaintiff § § v. § § AUSTIN BUILDING COMPANY § DALLAS COUNTY, TEXAS Defendant and Third Party Plaintiff § § v. § § 162nd JUDICIAL DISTRICT EGR CONSTRUCTION, INC. § Third Party Defendant § EXHIBITS A-F – PART 1 Exhibit A Response Pg. No. 38 CAUSE NO. DC-18-02358 MUSEUM TOWER, LP § IN THE DISTRICT COURT OF Plaintiff § § V. § § AUSTIN BUILDING COMPANY § Defendant and Third Party Plaintiff § DALLAS COUNTY, TEXAS § V. § § EGR CONSTRUCTION, INC. § TbirdParty Defendant § 162'” JUDICIAL DISTRICT AFFIDAVIT OF JENNIFER MOSS LEPORIS STATE OF TEXAS § COUNTY OF DALLAS g BEFORE ME, the undersigned authority, on this day personally appeared Jennifer Moss LePoris, who is personally known to me, and after being first duly sworn according to law upon her oath, deposed and stated as follows: 1. “My name is Jennifer Moss LePoris. I am over the age of eighteen (18) years, am of sound mind, and am fully competent to testify in all matters stated herein. I have never been convicted of a crime, and I am fully competent to make this affidavit. I have personal knowledge of the facts stated herein, and they are all true and correct. 2. I was hired by Museum Tower, LP (“Museum Tower”) to serve as Finish Coordinator for the Museum Tower Condominium Project (the “Project”) from approximately September 2011 until approximately June 2016. In this role, I had responsibility for communicating With unit purchasers regarding standard material selections and upgrades in their units, performing punch list walks With Austin Building Company (“Austin”) and unit purchasers, requesting that Austin perform correction or warranty work after Austin’s final AFFIDAVIT OF JENNIFER MOSS LEPORIS — Page 1 Response Pg. No. 39 completion of the Project, and coordinating the performance of warranty work in the units after Austin’s final completion of the Proj ect. 3. Prior to working at the Project, I worked on the following residential condominium projects: W Dallas Residences, The House (in Dallas), The Terrace (in Dallas), and W Austin Residences. My job responsibilities on such projects were very similar to those on the Project. Specifically, I coordinated material selections, performed punch list walks, and participated in warranty work. After leaving the Project, I continue working on residential condominium projects performing similar job duties. 4. Prior to Austin’s final completion of the Proj ect, I participated in punch list walks for each of the units contained within the Project. During these punch list walks, I would identify minor issues for repair by Austin or its subcontractors prior to final completion. A representative of the Project architect also participated in the punch list walks. At the time these punch list walks were performed, there were over one hundred individual condominium units in the building. 5. While performing punch list walks prior to Austin’s completion of the building, I did, on a few isolated occasions, see instances where the metal edge banding separated from the wooden kitchen cabinet doors and drawers (“delamination”). I would estimate that I saw this issue in less than five units. 6. During the punch list process, there were thousands of issues identified and repaired across the building. Austin directed its subcontractors to repair the issues, and then we would perform re-walks to confirm all items were corrected. For instance, Austin and its subcontractors corrected numerous issues related to paint, caulk and grout, scratches and chips in materials, and countless other issues. At the time I performed punch list walks with Austin, it AFFIDAVIT 0F JENNIFER MOSS LEPORIS — Page 2 Response Pg. No. 4O was not my understanding or belief that the cabinet delamination issue may extend to all cabinets in the building. I was never told by an Austin representative — or anyone else — that the few delamination issues were different or more significant than the thousands 0f other punch list items repaired. I was never told by an Austin representative — or anyone else — that the delamination issues may extend to all cabinets in the building. 7. At the time I performed punch list walks with Austin, it was my understanding and belief that the cabinet delamination issue was isolated t0 the few units in which it was seen, and that all such issues were repaired prior to final completion. I formed this understanding based on the fact that we did not see the issue in enough units to cause an alarm. 8. On February 25, 2013, I sent the email attached hereto as Exhibit A-1. Exhibit fl is a true and correct copy of my email. In this email, I identified a few items that may require a warranty call to Austin. However, I did not believe, and had n0 reason to believe, that any 0f these items would impact all or a significant number 0f the units. They were simply items we may run into in a few, isolated instances that would require the original subcontractor to perform repair work while the homes were under warranty. 9. In September of 2013, Austin contacted EGR Construction, Inc. (“EGR”) regarding the delamination. A true and correct copy of the email, on which I was copied, is attached hereto as Exhibit A-2. 10. By December of 2013, metal edge banding delamination had occurred in over thirty units. At this time, EGR had begun performing warranty work at the building almost monthly. Additionally, by December of 2013, I understood that the delamination issue likely impacted all or a large number 0f the units in the building that had aluminum edge banding.” AFFIDAVIT OF JENNIFER MOSS LEPORIS — Page 3 Response Pg. No. 41 (mmmmmj ?W— Jennifl/I oss flePoris SWORN TO AND SUBSCRIBED BEFORE ME on this Z 77% day of August, 2019. Notai‘fPublic in and foréfie State of Texas r Notary Public, State of Texas Notary ID 387933-3 ‘k My Commission Exp. 01-08-2021 .- AFFIDAVIT OF JENNIFER MOSS LEPORIS — Page 4 Response Pg. No. 42 Exhibit A-l Response Pg. No. 43 From: Jenny Moss Sent: Monday, February 25, 2013 4:17 PM CST To: Duane Bates; CPIummer@austin-ind.com CC: TSyverson@austln-ind.com; NSimpson@austln-ind.cam; ASyverson@Austin—Ind.com; Lyle Burgin; Jeff@andresconstructian.ccm Subject: RE: Warranty Work Casey is the first point of contact after an engineer goes up. Basically most anything is under warranty for a year after closing except for wear and tear items regarding finishes, over flushing of items in a toilet, light bulb replacement, non-disposal items stuck in a disposal and basically common sense stuff really. lforesee pocket doors sticking, kitchen drawers not closing correctly, balcony door locks not locking, plumbing dripping, bathtub drain stops getting stuck, glass doors sagging, metal edge banding at kitchen cabinets coming off, motorized shades not working, wood at dishwashers inside fading due to steam, and electrical outlet tripping orjust having never worked, Jenny Moss Interior Finish Coordinator Museum Tower 2149541234: x202 From: Duane Bates [maiIto:duane.bates@premiercommunities.net] Sent: Monday, February 25, 2013 3:56 PM To: Jenny Moss; CPIummer@austin-ind.com Cc: TSyverson@austin—ind.com; NSimpson@austin—ind.com; ASyverson@Austin-Ind.com; Lyle Burgin; Jeff@andresconstruction.com Subject: RE: Warranty Work ls Casey the first point of contact to determine if it’s a warranty item? Or, is there a list of what is under warranty? Duane Bates General Manager n museum tower 1918 Olive Street, Dallas, Texas 75201 Direct: 214.276.0099 Mobile 214.930.5732 | From: Jenny Moss lmailto:jmoss@museumtowerdallas.coml Sent: Monday, February 25, 2013 3:42 PM To: Duane Bates; Casey Plummer (CPlummer@austin-ind.com) Cc: Thomas Syverson (TSflerson@austin-ind.com); Nick Simpson (NSimpson@austin-ind.com); 'Al Syverson' (ASflerson@Austin-Ind.com); Lyle Burgin; Jeff@andresconstruction.com Subject: Warranty Work Hello. MT003970 Response Pg. No. 44 We need to have a discussion aboutthis especially before l am gone. lknow both Duane and | are now the facilitators and when am gone we need | to have a system in place. Below is what think the | protocol is so everyone please read through and let me know if anyone feels differently. 1. Buyer should call the front desk to give them the warranty item in question. 2. The front desk then gives the item or items to the maintenance team who will do the following: a. Know the issue cannot be resolved easily and contacts Casey Plummer. b. Goes up to see the issue, if it is simple fix/ repair do it then. c. If not able to fix it then verify if it is a warranty issue. If NOT a warranty issue lets the buyer know and can ask them to set up a repair person to come by. d. If not able to fix and it IS a warranty issue contacts Casey Plummer to get a repair person on site. 3. Casey Plummer with ABC then finds out when the repair person is available and coordinates through the front desk when the buyer will allow work. 4. When the work is scheduled a representative from ABC will escort the repair person up to the condo. The ABC person will need to gain access through the front desk. 5. lfthere is ever a discrepancy in the warranty item, then in my absence Lyle Burgin will be the MT negotiator with ABC. Jenny Moss Interior Finish Coordinator Museum Tower 21 l2 Flora Street Dallas.TX 75201 Phone: 214,954. I234 x 202 Fax: 2 |4,954.996~1 Email: jmoss@museumtowerdallas‘com www.museumtowerdallas.com ‘ I museum tOWeI MT003971 Response Pg. No. 45 Exhibit A-2 Response Pg. No. 46 Frum: Nick Simpson Sent: Monday, September 16, 2013 3:56 PM CDT Tu: NOAH HUTCHENS; Terry Malmberg CC: Steve Fortmeier; Jenny Leporis (Moss) Subject: Fwd: Can yau see if EGR can bring someone out for the day. Attachments: imagejpeg, image.jpeg, imagejpeg, imagejpeg, image001.png Guys, Ihave been getting a ton 0f calls about the edge banding in all of the units coming off. Unit 3 1 04 in palticularis extremely bad. Up until now, Henry with museum tower or myself has been fixing them. This is becoming too much 0f a chore t0 d0 because of the work load that has come upon us. I need to see ifyou can get a man out here to go from unit t0 unit and fix the edge banding that is falling off so it does not happen again. The museum tower staff brings tours through every day showing different floor plans and there is always edge banding falling off which looks poorly for us. What sort of adhesive did you use that this is becoming such an issue? Please let me know if you can get someone out here. Please see attached pictures. E E E E Thanks, Nick Simpson Austin Commercial (972) 672—13 80 Begin forwarded message: From: "Jenny LePoris (Moss)" Date: September 16, 2013, 3:34:48 PM CDT To: "Nick Simpson (NSimpson@austin-ind.com)" , "'Steve Fortmeier' (sfort@Austin-Ind.com)" Subject: Can you see if EGR can bring someone out for the day. MT004644 Response Pg. No. 47 Jenny LePoris Interior Finish Coordinator Museum Tower l918 Nonh Olive Street #602 Dallas. TX 75201 Phone: 214.954.1234 x 202 Fax: 2149549964 Email: jleporiS(tgmuseumtowcrdallas.com www.museumtowerdallas.com jEI MT004645 Response Pg. No. 48 M T w 4 64 8 Response Pg. No. 49 MTIIMN? Response Pg. No. 50 MID D4348 Response Pg. No. 51 M T M 4 a 4 n. Response Pg. No. 52 Exhibit B Response Pg. No. 53 CAUSE NO. DC-18-02358 MUSEUM TOWER, LP § 1N THE DISTRICT COURT 0F Plaintiff § § v. § § AUSTIN BUILDING COMPANY § Defendant and Third Party Plainnfi § DALLAS COUNTY, TEXAS § v. § § EGR CONSTRUCTION, INC. § Third Pamperendant § 162““ JUDICIAL DISTRICT AFFIDAVIT 0F JOSEPH A. SORRELLI STATE 0F fl/fll/ I”. WKC § § COUNTY 0F /) The Owner and Contractor agree as follows. ELECTRONIC COPYING Of any portion of this AIAE Document to another electronic file is prohibited and constitutes a violation of copyright laws as set forth in the footer of this document. AIA Docmaflt A102" - 2007 (fumerly A111" - 1997). Copyright a 19‘20, 1925, 1951, 1958. 1961. 1963, 1967, 1974, 1978, 1987, 1997 and 2007 by The American Institute of Architects. A11 rights reserved. WARNING: Ibis ALA Document is protected by ILS. Copyright Law and International Treaties. Unauthorized reproduction c: distribution at this AIA Document, or any goxtion ct it; may result in severe civil and cr'znina]. penalties. and will be prosecuted to the maximum azunt pcssible under the Jaw. This draft was produced by AXA software at 05:52:40 on 03/11/2010 under Order Nc.4271329184_1 which expires on 06/28/2010, and is no: for resale. Use: Notes: MT 06606510‘3532’ Response Pg. No. 66 TABLE OF ARTICLES 1 THE CONTRACT DOCUMENTS 2 THE WORK 0F THIS CONTRACT 3 RELATIONSHIP 0F THE PARTIES 4 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION 5 CONTRACT SUM 6 CHANGES IN THE WORK 7 COSTS T0 BE REIMBURSED 8 COSTS NOT TO BE REIMBURSED 9 DISCOUNTS, REBATES AND REFUNDS 10 SUBCONTRACTS AND OTHER AGREEMENTS 11 ACCOUNTING RECORDS 12 PAYMENTS 13 DISPUTE RESOLUTION 14 TERMINATION OH SUSPENSION 15 MISCELLANEOUS PROVISIONS 16 ENUMERATION 0F CONTRACT DOCUMENTS 17 INSURANCE AND BONDS ARTICLE1 THE CONTRACT DOCUMENTS The Contract Documents consist of this Agreement, Conditions of (he Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of this Ag‘eement, other documents listed in this Agreement and Modifications issued after execution 0f this Agreement, all of which form [he Contract, and are as fully a part of the Contract as if attached Io this Agreement 01' repeated herein. The Contract represents the entire and integrated agreement between [he parties hereto and supersedes prior negotiations, representations or 01' oral. The controlling order of precedence in the event of conflicts between the agreements, either written documents forming the Contract is set forth in the General Conditions. The terms “Contract" and “Agreement" used in the Contract Documents can be used interchangeably to mean this Agreement while the Icrm Contract Documents refers lo [he items set forth above. ARTICLE 2 THE WORK 0F THIS CONTRACT § 2.1 The Contractor shall fully execute the Work described in the Contract Documents, except as specifically indicated in the Contract Documents t0 be the responsibility of others. § 2.2 During Ihc performance 0f [he Work, the Contractor shall, consistent with [he requirements of Paragraph 3.9 of [he General Conditions. keep a competent superintendent at the Project site, fully authorized lo act on behalf of the Contractor. Written notice from the Owner or thc Architect lo such superintendent in connection with defective Work 01' instructions for performance of the Work shall bc considered notice of such issues to the Contractor. RIA Docmnent A102“ < 2007 (fomerly A111" - 1997). Copyright o 1920. 1525, 1951, 1958, 1561, 1963, 1967. 19-74, 197B, 1587, 1997 and 2007 by 'Ihe American Institute of hrehitects. 111 rights reserved. WERNING: This AIA Document is pzotected by v.3. Capyright Law and Innuemau’onal Treaties. Unauthorized reproduction or distribution 0E this AIA Document. o: any portion oi it. may result in severe civil and criminal penalties. and will be prosecuted ho Lbe maximum extent gosaible under the law. This dmft was produced by AIR software at 09:52:40 on 03/11/2010 under Order No.4271329184_1 which axpires on 06/28/2010, and 1'5 not fog resale‘ User Notes: MT 0mg0632) Response Pg. No. 67 ARTICLE 3 RELATIONSHIP OF THE PARTIES §3.1 The Contractor accepts the relationship oftrusl and confidence established by this Agreement and covenants with the Owner to cooperate with the Architect and exercise lhe Contractor’s skill andjudgment in furthering lhe interests of the Owner; to furnish efficient business administration and supervision; to furnish at all times an adequate supply of workers and materials; and to perform the Work in an expeditious and economical manner consistent with the Owner’s interests. The Owner agrees lo furnish and approve, in a timely manner, information required by the Contractor and lo make payments to the Contractor in accordance with the requirements of the ContractDocuments. No fiduciary relationship is intended by this provision of the Agreement. §3.2 No notice, decision, consent, approval, agreement, or directive which [he Owner is authorized or required to make or provide under the Contract Documents shall be effective or binding on the Owner unless made or communicated by or Owner’s Representative unless Owner has expressly delegated in writing [he to the designated authority to some other named person, to make or communicate such notice, decision, consent, approval, person, agreement or directive. Owner reserves the right to change its designated representative at any time by written notice to Contractor executed by an officer of the Owner. ARTICLE 4 DATE 0F COMMENCEMENT AND SUBSTANTIAL COMPLETION 54.1 The dale of commencement 0f the Work shall be fixed in a notice to proceed issued by [he Owner. (Insert rhe dare Ofcommencemenr, [fir diflersfrom rhe dare 0f thix Agreemenr or, ifapplicable, stare rhar rhe dare will be fixed in a notice r0 proceed. ) ((3 )) (€ )) §4.2 The Contract Time shall be measured from the date of commencement. §4.3 The Contractor shall achieve Substantial Completion of the Work as set forth in Exhibit C (the “Substantial Completion Deadlines”) (Insert number ofcalendardays. Alternatively, a calendar date may be used when coordinated with rhe dare of connnencemenr. Ifappmpriare, insert I'equirementsfor earlier Substantial Completion ofcerlain porrions 0f the Work.) « See ExhibitC » Portion ofWork Substantial Completion date , subject to adjustments of this Contract Time as providedin the Contract Documents. (Insert provisions, ifan)’, for liquidated damages relating tofailure r0 achieve Subsranrial Completion on time, 0r for bonux paymenrxfor early completion 0f rhe Work.) The parties agree that the damages that Owner would suffer if the Contractor does not meet the Substantial Completion Deadlines are difficult to quantify and therefore agree to the following liquidated damages as a reasonable approximation of [hose damages. Contractor shall have a 30 day grace period after the scheduled final Substantial Completion Deadline shown on Exhibit C before liquidated damages will be charged. For every day 30 days that Contractor does not achieve final Substantial Completion, Contractor after the first shall pay Owner $20,000a day as liquidated damages and not as a penalty. Liquidated damages shall be capped at $1,800,000.00. ARTICLE 5 CONTRACT SUM §5.1 The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor’s performance of the Contract. The Contract Sum is the total 0f the Cost of the Work as defined in Article 7, [he Contingency (if utilized), the General Conditions Costs, and the Contractor’s Fee‘ AIA Document A102“ - 2007 (fomrly A111“ - 1997). Copyright 9 1320, 1925, 1951. 1953, 1261, 1963, 1967, 1974, 197a, 1987, 1597 and 2007 by The American institute of Architects. All rights reserved. WARNXNG: This AIA Document is protected by v.3. Copyright Law 3d International Treaties‘ Unauthorized reproduction o: distnbution of this P.IA Document, or any portion of it, may result: in seveze czvil 3 and criminal penalties, and will be prosecuted to the maxamum extent possibl: under the law. This draft was producm by AIA software at 09:52:40 on 03/11/2010 under 0rder No.4271329184._1 which expires on 06/28/2010. and is not for resale. vsu‘ Nata: : MT mmoasz) Response Pg. No. 68 § 5.1 .1 The Contractor’s Fee: (Stare a lump sum. percenrage 0f Cosr ofrhe Work 0rorherprovisionfar determining rhe Conrracror’s Fee‘) « The Contractor’s Fee is fixed al $2,567,500'M1ich equates to 2.3% ofthe Im'lia] GMP. . » § 5.1.2 The method of adjustment of the Contractor’s Fee for changes in the Work: « The Contractor‘s Fee shall be fixed at $2,567,500 and shall not be subject to reduction by any savings or decrease in [heCost of lhe Work or increased by any increase in the Cost of the Work, except in relation to any customization of condominium units by the purchasers of such units for which Contractor shall be entitled to additional Contractor’s Fee as set forth in Exhibit B.» § 5.1 .3The Contractor sh‘all be entitled to payment for General Conditions costs as s‘et forth in Exhibit A. a 5) § 5.1 .4 For any costs outside of [he lump sum General Conditions, rental rates for Contractor-owned equipment shall not exceed the standard rate paid at the place of the Project as set forth in Exhibil T. §5.1.5 Unil prices, if any: to be set by Change order. (Identifiv and stare rhe unit price: srare rhe quantify Iimirariolls, ifany, r0 which rhe uni! price will be applicable.) Item Units and Limitations Price Per Unit ($0.00) §5.2 GUARANTEED MAXIMUM PRICE § The Initial GMP for [he Project is $114,197,950. It is the intent of the parties [hat the Final GMP shall not 5.2.1 exceed $1 14,197,950 unless the Owner makes changes that increase [he scope of work for the Project or [he issuance ofthe For Construction documents is delayed more than 20 days after July 20, 2010. Contractor shall provide [he Fina] GMP proposal Io Owner in writing upon completing the Buyout process as described in Exhibit B, but in 20 days after issuance of [he For Construction documents. The Contract Sum is n0 evenl later lhan guaranteed by the Contractor not to exceed Final GMP, subject to additions and deductions by Change Order as provided in the Contract Documents. Such maximum sum is referred to in the Contract Documents as the Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Contractor without reimbursement by the Owner. {Insert specific provisions ifrhe Contracror is r0 parricipare in any savings. ) « At the completion of the Project, the GMP shall be reduced by any unused contingency amounts, unused Allowance amounts, and unused amounts allocated lo [he excess liability insurance before the savings shall be calculated. Contractor shall be entitled to 25% of any such savings‘ » § 5.2.2The Guaranteed Maximum Price is based on the following alternates, if any, which are described in the Contract Documents and are hereby accepted by the Owner: (Srare rhe numbers 0r Other identificarion ofaccepred alrernares. Ifbidding arpropasal documenrspermit rhe Owner r0 accept other alternates subsequent r0 the execution 0f rhis Agreement, (mach a schedule 0f such orher alrernares showing rhe amaunrfor each and rhe dare when rhe amount expires.) « See Exhibit R » §5.2.3 Allowances included in the Guaranteed Maximum Price, if any are set forth in Exhibit D and Exhibit R: (Identifir allowance and stare exclusions, if any, fi'om rhe allowance price. ) Item Price §5.2.4 Assumptions, 1f any, on wlnch the Guaranteed Maxumum Prnce Is based: AKA Docummt 5102" - 3007 (faxmetly A111” - 1557)‘ Copyright u 19204 1925, 1951, 1958. 1961, 1963, 1967, 1974, 1978, 1957, 1997 and 200'] International Txeaties. Unauthorized reprsduction or distribution o: this m by The American Institute of Architects. A11 rights reserved. WARNING: This ALA Document is protected by 0.5. Ccyyright Law and Document, or any portibn oi it. may result in severe civil and criminal panalties. and will be prosecuted to the maximum extent possible under the law. This draEt was produced by AKA s-ftwaxe at 4 09:52:40 on 03/11/2010 under Order No~4271329184_1 which expires on 06/28/2010. and i‘s nor. Eur resale. use: Notes: MT omgqnusaz) Response Pg. No. 69 Contractor a'sSumptio'ns and qualifications incmded with 4t {113 Guaranteed Maximum Price are sCt forth in EXhibit K. » § 5.2.5 To the extent that lhc Drawings and Specifications are anticipated to require further development by the Architect, thc Contractor has provided in the Guaranteed Maximum Price for such further development consistent with the Contract Documents and reasonably inferabletherefrom. Such further development does not include such things as changes in scope, systems, kinds and quality of materials, finishes or equipment, all of which, if required, shall be in corporated by Change Order. §5.2.6 The Initial Guaranteed Maximum Price includes (and (he schedule of values reflects) a Contingency in the amount of $1 500,000 subject lo increase lo a maximum of$1,800.000 as set forth in Exhibit B. The Contingency may be used (o cover the following but shall not include any overhead or mark up: l. Costs for additional, unanticipated charges by Subcontractors resulting from omissions in the bid packages; 2. Costs for acceleration or re-sequencing the Work (including extra manpower 01' overtime charges to complete work out of sequence or on an accelerated basis), provided (hatContractor is not otherwise entitled to a change order for acceleration 0r re—sequencing; 3. Cosls for repairing or re—performing Work that is defective or not in conformity wilh the Contract Documents, provided that (i) the costs are not recoverable through insurance, (ii) the Work is n01 re—performed by Subcontractors al no cost to Contractor, and (iii) [he defeclive 0r non—conforming Work results from events beyond the control of Contractor 01‘ Subcontractors or from mere inadvertence 0r negligence by Contractor 0r Subcontractors and n01 gross negligence or intentional actions; or 4. Additional costs lo perform lhe Work not arising from errors or omissions by the Contractor, and not relating lo defective Work (which is covered by subsection .3, above), §5.2.6.1 Use ofContingency by the Contractor shall be subject 10 [he prior written approval of Owner, such the approval not (o be unreasonably withheld. The Contingency is not intended to be used by the Owner for items that are the subject of a Change Order, scope changes or for changes in the Work. §5.2.6.2 The Contractor shail indicate in monthly payment applications the previously approved usc of any funds from the Contingency and costs shall in a log updated monthly and submitted for the Owner’s be tracked representative’s review. Al final completion of the Work any unused contingency shall not be considered as Savings. ARTICLE 6 CHANGES IN THE WORK §6.1 Adjustments t0 the Guaranteed Maximum Price 0n account ofchanges in the Work may be determined by any of the methods listed in the General Conditions. §6.2 In calculating adjustments to subconLracls (except [hose awarded with the Owner's prior consent on the basis of cost plus a fee), the terms “cost” and “fee” as used in the General Conditions and lhe term “costs” as used in the General Conditions shall have the meanings assigned lo them in the General Conditions and shall not be modified by Articles 5, 7 Agreement. Adjustments to subcontracts awarded with the Owner‘s prior consent on and 8 of this the basis of cost plus a fee shall be calculated in accordance with the terms of those subcontracts. § 6.3 In calculating adjustments lo the Guaranteed Maximum Price, lhe terms “cost” and “costs" as used in the above—referenced provisions oflhc General Conditions shall mean the Cost ofthe Work as defined in Article 7 of this Agreement and the term “fee” shall mean [he Contractor’s fixed Fee as defined in Section 5.1.1 oflhis Agreement. §6.4 [Intentionally Deleted] AIA DDcument A102” f 2007 (Eometly A111" - 1597). Copyright a 1920', 1925‘ 1951, 19581 1951. 1963, 1967, 1974, 197E, 1987, 1997 and 2M7 by The American Institute of Architects. A11 rights reserved. WARNING; This LIA Document is protected by ms. Copyright Law and International Treaties. Unauthorized reproduction or distribution oi this AIA Document. or any vartiou ct it. may result in severe :iv 1 and criminal penalties‘ and will be prosecuted to the maximum extent possfble under the law. This draft was produced by AIA software at 09:52:40 on 03/11/2010 under Order No.427132918l»_1 which expires an 06/28/2010. and is not for resale. User Notes: MT OOWUBSH) Response Pg. No. 70 ARTICLE 7 COSTS TO BE REIMBURSED §7.1 COST OF THE WORK § 7.1.1 The term Cost of the Work and any other costs payable lo Contractor under [his Agreement shall mean those reasonable costs necessarily incurred by the Contractor in [he proper performance 0fthe Work. Such costs shall be at rates not higher than the standard paid at the place of the Project except with prior written consent of the Owner. The Cost ofthe Work shall include only the items set forth in this Article 7. Thoseitems listed in [his Anicle 7 (hat are General Conditions costs shall be limited as set forth elsewhere in this Agreement. § 7.1.2 Where any cost is subject 10 the Owner’s prior approval. the Contractor shall obtain this approval prior to incurring lhc cosL The panics shall endeavor [o identify any such costs prior Io executing this Agreement. § 7.2 LABOR COSTS § 7.2.1 Wages ofconstruction workers directly employed by the Contractor to perform the construction of [he Work at the site or, with the Owner's pn'or approval, at off-sile workshops consistent wilh local labor rates. §7.2.2 Wages or salaries ofthe Contractor’s supervisory and ad ministralive personnel are included in the lump sum General Conditions amount sel fonh in Exhibit A. (If it is intended that the wages 0r salaries ofcertain personnel stationed at the Contractor'sprincipal 0r other ofiices shall be included in the Cost ofrhe Work, identify in Arn'cle 15, the personnel r0 be included, whetherfor all oronly part offheir time, and the rates a! which their time will [1e Charged t0 rhe Work.) §7.2.3 Wages and salaries of [he Contractor’s supervisory or administrative personnel engaged at factories, workshops or on (he road, in expediting [he production or transportation of materials or equipment required for [he Work, are included in the lump sum General Conditions amount set forth in Exhibit A. § 7.2.4 Costs paid or incurred by [he Contractor for taxes, insumuce, contributions, assessments and benefits required by law or collective bargaining agreements and, for personnel not covered by such agreements, customary benefits such as sick leave, medical and health benefits, holidays, vacations and pensions, provided such costs are based 0n wages and salaries included in the Cost ofthe Work under Sections 7.2.1 shall be billed at [he fixed burden rate set forlh in Exhibit K and under Sections 7.2.2 through 7.2.3.5uch costs are included in the lump sum General Conditions amount set fonh in Exhibit A. §7.2.5 Bon uses, profit sharing, incentive compensation and any other discreLionary payments paid to anyone hired by the Contractor or paid to any Subcontractor or vendor, with the Owner‘s prior approval in accordance are included in the lump sum General Conditions amount set forth in Exhibit A. § 7.3 SUBCONTRACT COSTS Payments made by [he Contractor to Subcontractors in accordance with the requirements ofthe subcontracts. §7.4 COSTS 0F MATERIALS AND EQUIPMENT iNCORPORATED IN THE COMPLETED CONSTRUCTION § 7.4.1 Costs, including transportation and storage, of materials and equipment incorporated or lo be incorporated in the completed construction. §7.4.2 Costs of materials described in the preceding Section 7.4.1 in excess oflhose actually installed to allow for reasonable waste and spoilage. Unused excess materials, ifany, shall become the Owner‘s properly at the completion of the Work or, at the Owner’s option, shall be sold by lhe Contractor. Any amounts realized from such sales shall bc credited to the Owner as a deduction from (he Cost oflhe Work. §7.5 COSTS 0F OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND RELATED ITEMS 57.5.1 Costs oftransportation , storage, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, machinery, equipment and hand tools not customarily owned by construction workers that are provided by the Contractor at the site and fully consumed in the performance ofthe Work. Costs of materials, supplies, temporary facilities, machinery, equipment and tools that are not fully consumed shall be based on the cost or value ofthe itcm at Ihe time it is first used on the Project site less the value of the item when it is no longer used at [he Project site. Costs for items not fully consumed by lhe Contractor shall mean fair market value. An Document A102” < 2007 (formerly 1:111” w 1997). capyrighc D 1920, 1925. 1951, 1958, 1S61, 1963. 1967. 1974, 157s, 1987, 1997 and 2007 by The American Institute of Architects. A11 rights reserved‘ WARNING: This m Document is protected by v.5. Copyright Law and Intaznational Treatiel. Unauthorized reproduction 0r distribution at this RIA Document, o: any portion oi it, may result 1n aevaze civil and crimnal penaltxes, and will be prosecuted to the maximum extent possible under the law. 'mis draft was produced by AIA software art 09:52:40 on 03/11/2010 under Order No.427132'9184_1 which expires on 06/2E/2010, and 1‘s not for resale. User Notes: MT omsooszz) Response Pg. No. 71 § 7.5.2 Rental charges for temporary facilities, machinery, equipment and hand tools not customarily owned by construction workers [hat arc provid