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Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 12:47 PM-17CV001032
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IN THE COMMON PLEAS COURT OF FRANKLIN COUNTY, OHIO
CIVIL DIVISION
STEED HAMMOND PAUL, INC., : CASENO: = 17-CV-001032
Plaintiff, : JUDGE: JEFFREY M. BROWN
ve 3
BERARDI PARTNERS, INC., : MOTION FOR LEAVE TO
AMEND/CORRECT COMPLAINT
Defendant.
Now comes Plaintiff Steed Hammond Paul, Inc. (“SHP”) and hereby moves this Court
for leave to correct an inadvertent error in its Amended Complaint, as described below, and as
illustrated by Count III of the attached proposed complaint. As explained in the attached
Memorandum, such amendment will not change any of the substantive claims or issues in this
case, nor will it prejudice Defendant, Berardi Partners, Inc. (“Berardi”).
Respectfully submitted,
AUMAN, MAHAN & FURRY
/s/David M. Rickert
David M. Rickert (0010483)
110 North Main Street; Suite 1000
Dayton, Ohio 45402
Phone: 937-223-6003
Fax: 937-223-8550
Email: dmr@amfdayton.com
Attorney for Plaintiff Steed Hammond Paul,
Ine.Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 12:47 PM-17CV001032
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On March 20, 2017, Plaintiff filed its Amended Complaint which included in Count II a
claim for “Indemnification”. In the allegations pertaining to that complaint SHP referenced its
claim against Berardi in the earlier litigation involving the parties, TransAmerica v. Ohio School
Facilities Commission, before the Ohio Court of Claims. In that action, SHP joined Berardi as a
fourth party and sought “indemnification and/or contribution for Berardi.” (Amended Complaint,
paragraph 21). Count III of this action is in essence a restatement of the Fourth Party Claim in
the Transamerica litigation.
Despite referencing “indemnification and/or contribution” in Paragraph 21 of the
Complaint, in paragraph 25, SHP inadvertently referenced only indemnification, but not
contribution. Accordingly, SHP requests leave of the Court to correct that oversight.
As referenced above, given the interrelated nature of indemnification and contribution,
such a change will not affect any of the issues to be tried in this case. Given the fact that no
discovery has taken place addressed to the issue of indemnification or contribution, such change
at this juncture will not nullify any of the discovery efforts taken to date, nor will it affect the
trial date in this case.
By way of explanation, in drafting the attached proposed Amended Complaint, for the
purposes of continuity Plaintiff has left in its first, breach of contract claim acknowledging that
this Court in its Order of June 20, 2017 dismissed that claim. Given the Court’s ruling, Plaintiff
expects that the trial will be limited to Counts II and III of the attached Amended Complaint.
Given that fact that Rule 15, Ohio Rules of Civil Procedure, provides that leave to amend
a complaint shall be freely granted when justice requires, and further given the lack of prejudice
to any party in this case, or to this Court’s docket, Plaintiff respectfully requests that the Court
permit Plaintiff to correct the oversight in its earlier pleading.Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 12:47 PM-17CV001032
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Respectfully submitted,
AUMAN, MAHAN & FURRY
/s/David M. Rickert
David M. Rickert (0010483)
110 North Main Street; Suite 1000
Dayton, Ohio 45402
Phone: 937-223-6003
Fax: 937-223-8550
Email: dmr@amfdayton.com
Attorney for Plaintiff Steed Hammond Paul,
Ine.
CERTIFICATE OF SERVICE
Thereby certify that on July 6, 2018, I electronically filed the foregoing with the Clerk of
the Court by using the ECF system which will send a notice of electronic filing to the following:
Bradley J. Barmen (0076515)
Theresa A. Sherman (0090971)
Lewis Brisbois Bisgaard and Smith, LLP
1375 E. 9th Street, Suite 2250
Cleveland, OH 44114
T: 216-344-9422 F: 216-344-9421
Brad.Barmen@lewisbrisbois.com
Tera.Sherman@lewisbrisbois.com
Counsel for Defendant Berardi Partners, Inc.
/s/David M. Rickert
David M. Rickert (0010483)Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 12:47 PM-17CV001032
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STEED HAMMOND PAUL, INC.
4805 Montgomery Road
Cincinnati, Ohio 45212
Vv.
BERARDI PARTNERS, INC.
1398 Goodale Boulevard
Columbus, Ohio 43212
IN THE COMMON PLEAS COURT OF FRANKLIN COUNTY, OHIO
CIVIL DIVISION
CASE NO: — 17-CV-001032
JUDGE: Jeffrey M. Brown
Plaintiff,
THIRD AMENDED COMPLAINT
Defendant.
Now comes Plaintiff Steed Hammond Paul, Inc. (“SHP”), and for its Complaint against
Defendant Berardi & Partners, Inc. (“Berardi”) states as follows:
BACKGROUND
Plaintiff SHP is an Ohio corporation with its principal place of business located in
Cincinnati, Ohio. SHP is in the business of providing professional architectural services
to its clients.
Defendant Berardi is an Ohio entity with its principal place of business located in
Columbus, Ohio. Berardi also is in the business of providing professional architectural
services to clients.
This lawsuit arises out of a construction project known as the Ohio State School for the
Blind and Ohio School for the Deaf Projects (the “Project”). Pursuant to a contract with
the Ohio School Facilities Commission (“OSFC”), SHP was the architect of record for
the Project and subcontracted responsibility for architectural design work pertaining to
the dormitory portion of the project, including being architect of record for that portion of
the project, to Berardi. In addition, Berardi was to provide some constructionFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 12:47 PM-17CV001032
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administration services for the dormitory construction. Documents evidencing the
contract between SHP and Berardi are attached hereto as Exhibit 1 (collectively, the
“Contract”). Berardi’s scope of work included, but was not necessarily limited to,
producing design documents and responsibility for responding to requests for
information, change orders, and providing related information and documentation for the
dormitory portion of the Project.
Berardi breached its contractual obligations by, inter alia, producing inaccurate drawings,
failing to timely respond to Requests for Information from those performing construction
services, and failing to produce updated drawings as required by SHP.
As a result of Berardi’s deficient performance of its contract, TransAmerica Building
Company, Inc. (“TransAmerica”), the general trades prime contractor on the Project filed
suit against the OSFC for its claimed losses resulting from Berardi’s acts and omissions.
SHP was named as a third party defendant in such action, and filed fourth party claims
against Berardi.
After a trial in the Ohio Court of Claims, a judgment was rendered against OSFC and in
favor of Transamerica in a sum in excess of $1,800,000, plus pre- and post-judgment
interest. The third and fourth party claims were bifurcated and were not tried. Ultimately,
to avoid potential liability and additional defense costs and expenses, SHP entered into a
reasonable settlement agreement with Transamerica and OSFC for the payment of
$971,700.
As a result, SHP now brings the instant action against Berardi to recover the damages that
SHP incurred as a direct and proximate result of (a) the time spent and expenses incurred
to correct or address Berardi’s deficient work; (b) the time spent and expenses incurred toFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 12:47 PM-17CV001032
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10.
11.
12.
13.
address and defend lawsuits and legal claims that followed; and, (c) payments SHP had to
make to settle certain claims that were based on damages directly and proximately caused
by Berardi’s deficient work which were and continue to be the legal responsibility of
Berardi.
This Court has jurisdiction over the parties and claims and is the proper venue for this
lawsuit because the Project was located in Franklin County, Ohio; because Berardi’s
principal place of business is in Franklin County, Ohio; and because Berardi’s deficient
work that is the subject of SHP’s claims occurred mainly in Franklin County, Ohio.
COUNTI
BREACH OF CONTRACT
SHP incorporates its preceding allegations as if fully rewritten here.
SHP and Berardi entered into the aforementioned Contract in connection with the Project.
The Contract called for SHP to pay Berardi for its services, as described more fully in the
Contract.
The Contract further incorporated the requirement under Ohio law that Berardi perform
its architectural work reasonably and in accordance with professional standards of care
applicable to the architectural profession.
SHP fully performed its obligations under the Contract.
Berardi failed to perform its obligations under the Contract as set forth above and
therefore breached such Contract, directly and proximately causing SHP to incur
reasonable and necessary expenses to correct Berardi’s deficient work, and in the defense
and settlement of the OSFC/Transamerica claim.Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 12:47 PM-17CV001032
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14.
15.
16.
17.
18.
19.
20.
21.
As a direct and proximate result of Berardi’s material breaches of its Contract, SHP has
sustained damages in excess of $25,000, the specific amount of which will be proven at
trial in this matter.
COUNTH
PROFESSIONAL NEGLIGENCE
SHP incorporates its preceding allegations as if fully rewritten herein.
Under Ohio law, the Contract between SHP and Berardi incorporated a duty that Berardi
perform its work reasonably and in accordance with professional standards of care
applicable in the architectural profession.
Berardi breached that duty, because its work on the Project fell below the applicable
standards of care in several respects as set forth above. By way of example, Berardi was
negligent in failing to provide accurate plans and specifications, failing to timely correct
plans and specifications that were incomplete or inaccurate when provided, and failing to
provide information requested by contractors regarding its design.
As a direct and proximate result of Berardi’s negligent breaches of duty and failure to
meet the applicable standard of care, SHP has sustained damages in excess of $25,000 as
described above, the specific amount of which will be proven at trial in this matter.
COUNT Il
INDEMNIFICATION OR CONTRIBUTION
SHP incorporates its preceding allegations as if fully rewritten herein.
TransAmerica filed a lawsuit in connection with the Project. SHP was one of the third-
party defendants in the TransAmerica lawsuit.
TransAmerica’s claims against SHP in the lawsuit were premised on Berardi’s deficient
work on the Project. As a result, SHP joined Berardi to the lawsuit and asserted fourth-Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 12:47 PM-17CV001032
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22.
23.
24.
25.
party claims against Berardi, including, but not limited to, a claim seeking
indemnification and/or contribution from Berardi.
Given the significant risks associated with a trial in the Transamerica lawsuit, because of
the evidence that demonstrated the deficient nature of Berardi’s work, SHP entered into
settlement negotiations with TransAmerica and other interested parties in an attempt to
reach a fair and reasonable settlement. Despite SHP’s repeated requests, Berardi refused
to contribute any sums toward the settlement, even though it bore ultimate legal
responsibility for the claims that had been asserted against SHP.
In approximately May, 2016, SHP provided a final written notice and demand to Berardi,
wherein SHP demanded that Berardi accept legal responsibility for and settle the pending
claims against SHP related to Berardi’s deficient work. SHP further advised Berardi that
TransAmerica was willing to accept a fair and reasonable amount to resolve such claims.
In the notice and demand, SHP provided further details regarding the ongoing settlement
negotiations. Berardi once again rejected and/or failed to comply with SHP’s demand
Ultimately, in repeatedly rejecting and/or failing to comply with SHP’s demands for
indemnification in connection with TransAmerica’s claims, Berardi placed SHP at risk of
increased liability over and above the amount(s) contemplated in the settlement
negotiations with TransAmerica. As a result, SHP moved forward with a fair and
reasonable settlement and fully paid the portion of the settlement attributed to the harm
that Berardi’s deficient work on the Project had caused.
As a direct and proximate result of Berardi’s refusal to indemnify SHP and/or contribute
in any meaningful way to the settlement, SHP has been damaged. SHP’s damages
consist of the settlement funds it had to pay on behalf of Berardi because of Berardi’s0F226 ppranktin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 12:47 PM-17CV001032
deficient work, in the sum of $971,700), and its time spent and attorney fees and other
expenses incurred in defending against the Transamerica/OSFC claims. SHP is,
therefore, entitled to indemnification in such amount, or contribution.
WHEREFORE, Plaintiff SHP prays for Judgment against Defendant Berardi:
1. On its First Claim for Relief in the amounts incurred by SHP in the defense and
settlement of the Transamerica litigation, in a currently unliquidated sum in excess of $25,000;
2. In the alternative, on its Second Claim for Relief in the amounts incurred by SHP
in the defense and settlement of the Transamerica litigation, in a currently unliquidated sum in
excess of $25,000;
3. In the alternative, on its Third Claim for Relief in the amounts incurred by SHP in
the defense and settlement of the Transamerica litigation as a result of Berardi’s professional
negligence, in a currently unliquidated sum in excess of $25,000.
SHP further prays for its reasonable attorney fees and expenses of this action, interest on
the above sums, and all other and further relief to which it may be entitled.
Respectfully submitted,
AUMAN, MAHAN & FURRY
/s/David M. Rickert
David M. Rickert (0010483)
110 North Main Street; Suite 1000
Dayton, Ohio 45402
Phone: 937-223-6003
Fax: 937-223-8550
Email: dmr@amfdayton.com
Attorney for Plaintiff Steed Hammond Paul,
Ine.0F226 np tanktin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 12:47 PM-17CV001032
CERTIFICATE OF SERVICE
Thereby certify that on July 6, 2018, I electronically filed the foregoing with the Clerk of
the Court by using the ECF system which will send a notice of electronic filing to the following:
Bradley J. Barmen (0076515)
Theresa A. Sherman (0090971)
Lewis Brisbois Bisgaard and Smith, LLP
1375 E. 9th Street, Suite 2250
Cleveland, OH 44114
T: 216-344-9422 F: 216-344-9421
Brad.Barmen@lewisbrisbois.com
Tera.Sherman@lewisbrisbois.com
Counsel for Defendant Berardi Partners, Inc.
/s/David M. Rickert
David M. Rickert (0010483)oR226 ag ranetin’ County Ohio Clerk of: Courts of the Common Pleas-.2018. Jul-09.12:47 PM-17CV001032 : = 4. oe
leas- 2017 Mar 20 2 20 Pl C/OOPBAINTIFF’S
Steed! Hammond |Paul
100 Yours of Architectars Inspired by the Community
|
|
MEMORANDUM
TO: George Berardi
FROM: Josh Predovich a t
RE: OSB/OSD SD Housing Design Services Fees |
DATE: June 5%, 2007
” Below is our attempt at laying out design service fees for the housing component of the Ohio
State School for the Blind aid Ohio School for the Deaf project, Please review and be prepared !
to discuss after our design team update meeting on Thursday. . ‘
Housing Design Fee Structure :
1, Total Design Fee for SD Phase i
: : i
Proposed Building Area : 207/000sf (based original contract agreement) sy
. Proposed Construction Cost: $33,120,000 ($160. Djs from OSEC agreement) :
Proposed Fee percentage 6.5% , t
Proposed total fee $2,152,800.00 :
Percentage for SD fee . 2% |
Proposed fee for SD $538,200.00
2 Housing Component Fee Structure
-Housing Component: Proposed Area 64,235sf (based on latest draft of POR)
..-—... Housing Construction Cost .. $10,277,600.00 -
‘Total SD Design Fee for Housing $167,011.00
3. SD Housing design services fee for Berardi & Partners.
Berardi & Partners $125,258.25 (75% of housing fee)
4. Assumptions : :
A. Current draft of POR square footage is significantly higher than 207,000sf. Design SG
service fees may be adjusted with completion of SD documents, SD estimate. Fee
structure listed above is based on housing square footages of 64,235sf as ‘contained
in the current draft of the POR (of 324,932sf).
250 Civic. Center Drive, Suite 200
Columbus, Ohio 43215 -
6-24 | fax 614-223-2130ong
Common Pleas- 201
On Te
B. Berardi & Partners will perform MEP and limited technology design in house and-
coordinate systems with Dynamix.
C. Structural design for *onsiag ‘will be performed by Shelly, Metz, ‘Bsnmann and
Hawk, Inc.
Please feel free to give me a call if you have any questions. . >
Sincerely, : .
STEED HAMMOND PAUL INC.
Joshua L. Predovich, Associate ALA, LEED AP _
Project Manger
280 Civic Center Drive, Suite 200
Columbus, Ohio 43215 |
AD-DIN | fax 614-223-2130
tee Mshp.com + .
—Ticitreny | Wenn F: Tivering Ossie | Convervgtion Terie«Franklin County Ohio Clerk of-Courts-of the-Common Pleas- 2018 Jul 09 12:47:PM-47€V001032
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 2:20 PM-17CV001032
dune 17,2011
Rolando Matias
Project Manager
Berardi + Partners, Inc.
369 East Livingston Avenue
Columbus, OH 43215
Re: — Ohio Schoo! for the Deaf / Ohio State School for the Blind
Additional Services Fee Agreement
Dear Rolando,
. Below is outline of the fee agreement we reviewed during our phone conversations from the
week of May 23" as welll as our accounting of the fee paid and owed to B+P for ‘the above
referenced project.
Ohio State School for the Blirid - SHP Project Number 2007022.00
Original Contract Agreement
Contract Value: $103,343.00
Invoiced: $103,343.00 (as of April 28", 2011)
Paid to Date:’ $103,343.00 - .
Remaining: $0.00
Ohio School for the Deaf ~ SHP Project Number 2007022.02
Original Contract Agreement ~
Contract Value: . $103,343.00
Invoiced: $103,343.00 (as of April 28", 2011)
Paid to Date: $103,343.00
Remaining: $0.00
OSDB Additional Services Agreement
Redesign services: $10,350.00 Dorm Re-bid (Able to billed immediately)
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. Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 2:20 PM-17CV001032 _
Leatina CesIaN
We appreciate all of the work your firm has provided during this challenging project and look
forward to working with the team to finish strong. | would like to set a time to review your billing
to date; | want to make sure we are in agreement on the invoicing numbers to date and the work
required to complete the contract. . yt
Please send back a signed copy acknowledging your acceptance of the additional services fee ~ }
agreement oullined above and feel free to give me a call set up a meeting ‘to review invoicing. {
Sincerely,
SHP LEADING. DESIGN
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‘Joshua L, Predovich, Assoc. AIA, LEED AP
|
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Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 12:47 PM-17CV001032 0E226 - s92 IN THE COMMON PLEAS COURT OF FRANKLIN COUNTY, OHIO CIVIL DIVISION STEED HAMMOND PAUL, INC., : CASENO: = 17-CV-001032 Plaintiff, : JUDGE: JEFFREY M. BROWN ve 3 BERARDI PARTNERS, INC., : MOTION FOR LEAVE TO AMEND/CORRECT COMPLAINT Defendant. Now comes Plaintiff Steed Hammond Paul, Inc. (“SHP”) and hereby moves this Court for leave to correct an inadvertent error in its Amended Complaint, as described below, and as illustrated by Count III of the attached proposed complaint. As explained in the attached Memorandum, such amendment will not change any of the substantive claims or issues in this case, nor will it prejudice Defendant, Berardi Partners, Inc. (“Berardi”). Respectfully submitted, AUMAN, MAHAN & FURRY /s/David M. Rickert David M. Rickert (0010483) 110 North Main Street; Suite 1000 Dayton, Ohio 45402 Phone: 937-223-6003 Fax: 937-223-8550 Email: dmr@amfdayton.com Attorney for Plaintiff Steed Hammond Paul, Ine.Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 12:47 PM-17CV001032 0E226 - S93 On March 20, 2017, Plaintiff filed its Amended Complaint which included in Count II a claim for “Indemnification”. In the allegations pertaining to that complaint SHP referenced its claim against Berardi in the earlier litigation involving the parties, TransAmerica v. Ohio School Facilities Commission, before the Ohio Court of Claims. In that action, SHP joined Berardi as a fourth party and sought “indemnification and/or contribution for Berardi.” (Amended Complaint, paragraph 21). Count III of this action is in essence a restatement of the Fourth Party Claim in the Transamerica litigation. Despite referencing “indemnification and/or contribution” in Paragraph 21 of the Complaint, in paragraph 25, SHP inadvertently referenced only indemnification, but not contribution. Accordingly, SHP requests leave of the Court to correct that oversight. As referenced above, given the interrelated nature of indemnification and contribution, such a change will not affect any of the issues to be tried in this case. Given the fact that no discovery has taken place addressed to the issue of indemnification or contribution, such change at this juncture will not nullify any of the discovery efforts taken to date, nor will it affect the trial date in this case. By way of explanation, in drafting the attached proposed Amended Complaint, for the purposes of continuity Plaintiff has left in its first, breach of contract claim acknowledging that this Court in its Order of June 20, 2017 dismissed that claim. Given the Court’s ruling, Plaintiff expects that the trial will be limited to Counts II and III of the attached Amended Complaint. Given that fact that Rule 15, Ohio Rules of Civil Procedure, provides that leave to amend a complaint shall be freely granted when justice requires, and further given the lack of prejudice to any party in this case, or to this Court’s docket, Plaintiff respectfully requests that the Court permit Plaintiff to correct the oversight in its earlier pleading.Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 12:47 PM-17CV001032 0E226 - S94 Respectfully submitted, AUMAN, MAHAN & FURRY /s/David M. Rickert David M. Rickert (0010483) 110 North Main Street; Suite 1000 Dayton, Ohio 45402 Phone: 937-223-6003 Fax: 937-223-8550 Email: dmr@amfdayton.com Attorney for Plaintiff Steed Hammond Paul, Ine. CERTIFICATE OF SERVICE Thereby certify that on July 6, 2018, I electronically filed the foregoing with the Clerk of the Court by using the ECF system which will send a notice of electronic filing to the following: Bradley J. Barmen (0076515) Theresa A. Sherman (0090971) Lewis Brisbois Bisgaard and Smith, LLP 1375 E. 9th Street, Suite 2250 Cleveland, OH 44114 T: 216-344-9422 F: 216-344-9421 Brad.Barmen@lewisbrisbois.com Tera.Sherman@lewisbrisbois.com Counsel for Defendant Berardi Partners, Inc. /s/David M. Rickert David M. Rickert (0010483)Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 12:47 PM-17CV001032 0E226 - S95 STEED HAMMOND PAUL, INC. 4805 Montgomery Road Cincinnati, Ohio 45212 Vv. BERARDI PARTNERS, INC. 1398 Goodale Boulevard Columbus, Ohio 43212 IN THE COMMON PLEAS COURT OF FRANKLIN COUNTY, OHIO CIVIL DIVISION CASE NO: — 17-CV-001032 JUDGE: Jeffrey M. Brown Plaintiff, THIRD AMENDED COMPLAINT Defendant. Now comes Plaintiff Steed Hammond Paul, Inc. (“SHP”), and for its Complaint against Defendant Berardi & Partners, Inc. (“Berardi”) states as follows: BACKGROUND Plaintiff SHP is an Ohio corporation with its principal place of business located in Cincinnati, Ohio. SHP is in the business of providing professional architectural services to its clients. Defendant Berardi is an Ohio entity with its principal place of business located in Columbus, Ohio. Berardi also is in the business of providing professional architectural services to clients. This lawsuit arises out of a construction project known as the Ohio State School for the Blind and Ohio School for the Deaf Projects (the “Project”). Pursuant to a contract with the Ohio School Facilities Commission (“OSFC”), SHP was the architect of record for the Project and subcontracted responsibility for architectural design work pertaining to the dormitory portion of the project, including being architect of record for that portion of the project, to Berardi. In addition, Berardi was to provide some constructionFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 12:47 PM-17CV001032 0E226 - s96 administration services for the dormitory construction. Documents evidencing the contract between SHP and Berardi are attached hereto as Exhibit 1 (collectively, the “Contract”). Berardi’s scope of work included, but was not necessarily limited to, producing design documents and responsibility for responding to requests for information, change orders, and providing related information and documentation for the dormitory portion of the Project. Berardi breached its contractual obligations by, inter alia, producing inaccurate drawings, failing to timely respond to Requests for Information from those performing construction services, and failing to produce updated drawings as required by SHP. As a result of Berardi’s deficient performance of its contract, TransAmerica Building Company, Inc. (“TransAmerica”), the general trades prime contractor on the Project filed suit against the OSFC for its claimed losses resulting from Berardi’s acts and omissions. SHP was named as a third party defendant in such action, and filed fourth party claims against Berardi. After a trial in the Ohio Court of Claims, a judgment was rendered against OSFC and in favor of Transamerica in a sum in excess of $1,800,000, plus pre- and post-judgment interest. The third and fourth party claims were bifurcated and were not tried. Ultimately, to avoid potential liability and additional defense costs and expenses, SHP entered into a reasonable settlement agreement with Transamerica and OSFC for the payment of $971,700. As a result, SHP now brings the instant action against Berardi to recover the damages that SHP incurred as a direct and proximate result of (a) the time spent and expenses incurred to correct or address Berardi’s deficient work; (b) the time spent and expenses incurred toFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 12:47 PM-17CV001032 0E226 - S97 10. 11. 12. 13. address and defend lawsuits and legal claims that followed; and, (c) payments SHP had to make to settle certain claims that were based on damages directly and proximately caused by Berardi’s deficient work which were and continue to be the legal responsibility of Berardi. This Court has jurisdiction over the parties and claims and is the proper venue for this lawsuit because the Project was located in Franklin County, Ohio; because Berardi’s principal place of business is in Franklin County, Ohio; and because Berardi’s deficient work that is the subject of SHP’s claims occurred mainly in Franklin County, Ohio. COUNTI BREACH OF CONTRACT SHP incorporates its preceding allegations as if fully rewritten here. SHP and Berardi entered into the aforementioned Contract in connection with the Project. The Contract called for SHP to pay Berardi for its services, as described more fully in the Contract. The Contract further incorporated the requirement under Ohio law that Berardi perform its architectural work reasonably and in accordance with professional standards of care applicable to the architectural profession. SHP fully performed its obligations under the Contract. Berardi failed to perform its obligations under the Contract as set forth above and therefore breached such Contract, directly and proximately causing SHP to incur reasonable and necessary expenses to correct Berardi’s deficient work, and in the defense and settlement of the OSFC/Transamerica claim.Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 12:47 PM-17CV001032 0E226 - S98 14. 15. 16. 17. 18. 19. 20. 21. As a direct and proximate result of Berardi’s material breaches of its Contract, SHP has sustained damages in excess of $25,000, the specific amount of which will be proven at trial in this matter. COUNTH PROFESSIONAL NEGLIGENCE SHP incorporates its preceding allegations as if fully rewritten herein. Under Ohio law, the Contract between SHP and Berardi incorporated a duty that Berardi perform its work reasonably and in accordance with professional standards of care applicable in the architectural profession. Berardi breached that duty, because its work on the Project fell below the applicable standards of care in several respects as set forth above. By way of example, Berardi was negligent in failing to provide accurate plans and specifications, failing to timely correct plans and specifications that were incomplete or inaccurate when provided, and failing to provide information requested by contractors regarding its design. As a direct and proximate result of Berardi’s negligent breaches of duty and failure to meet the applicable standard of care, SHP has sustained damages in excess of $25,000 as described above, the specific amount of which will be proven at trial in this matter. COUNT Il INDEMNIFICATION OR CONTRIBUTION SHP incorporates its preceding allegations as if fully rewritten herein. TransAmerica filed a lawsuit in connection with the Project. SHP was one of the third- party defendants in the TransAmerica lawsuit. TransAmerica’s claims against SHP in the lawsuit were premised on Berardi’s deficient work on the Project. As a result, SHP joined Berardi to the lawsuit and asserted fourth-Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 12:47 PM-17CV001032 0E226 - s99 22. 23. 24. 25. party claims against Berardi, including, but not limited to, a claim seeking indemnification and/or contribution from Berardi. Given the significant risks associated with a trial in the Transamerica lawsuit, because of the evidence that demonstrated the deficient nature of Berardi’s work, SHP entered into settlement negotiations with TransAmerica and other interested parties in an attempt to reach a fair and reasonable settlement. Despite SHP’s repeated requests, Berardi refused to contribute any sums toward the settlement, even though it bore ultimate legal responsibility for the claims that had been asserted against SHP. In approximately May, 2016, SHP provided a final written notice and demand to Berardi, wherein SHP demanded that Berardi accept legal responsibility for and settle the pending claims against SHP related to Berardi’s deficient work. SHP further advised Berardi that TransAmerica was willing to accept a fair and reasonable amount to resolve such claims. In the notice and demand, SHP provided further details regarding the ongoing settlement negotiations. Berardi once again rejected and/or failed to comply with SHP’s demand Ultimately, in repeatedly rejecting and/or failing to comply with SHP’s demands for indemnification in connection with TransAmerica’s claims, Berardi placed SHP at risk of increased liability over and above the amount(s) contemplated in the settlement negotiations with TransAmerica. As a result, SHP moved forward with a fair and reasonable settlement and fully paid the portion of the settlement attributed to the harm that Berardi’s deficient work on the Project had caused. As a direct and proximate result of Berardi’s refusal to indemnify SHP and/or contribute in any meaningful way to the settlement, SHP has been damaged. SHP’s damages consist of the settlement funds it had to pay on behalf of Berardi because of Berardi’s0F226 ppranktin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 12:47 PM-17CV001032 deficient work, in the sum of $971,700), and its time spent and attorney fees and other expenses incurred in defending against the Transamerica/OSFC claims. SHP is, therefore, entitled to indemnification in such amount, or contribution. WHEREFORE, Plaintiff SHP prays for Judgment against Defendant Berardi: 1. On its First Claim for Relief in the amounts incurred by SHP in the defense and settlement of the Transamerica litigation, in a currently unliquidated sum in excess of $25,000; 2. In the alternative, on its Second Claim for Relief in the amounts incurred by SHP in the defense and settlement of the Transamerica litigation, in a currently unliquidated sum in excess of $25,000; 3. In the alternative, on its Third Claim for Relief in the amounts incurred by SHP in the defense and settlement of the Transamerica litigation as a result of Berardi’s professional negligence, in a currently unliquidated sum in excess of $25,000. SHP further prays for its reasonable attorney fees and expenses of this action, interest on the above sums, and all other and further relief to which it may be entitled. Respectfully submitted, AUMAN, MAHAN & FURRY /s/David M. Rickert David M. Rickert (0010483) 110 North Main Street; Suite 1000 Dayton, Ohio 45402 Phone: 937-223-6003 Fax: 937-223-8550 Email: dmr@amfdayton.com Attorney for Plaintiff Steed Hammond Paul, Ine.0F226 np tanktin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 12:47 PM-17CV001032 CERTIFICATE OF SERVICE Thereby certify that on July 6, 2018, I electronically filed the foregoing with the Clerk of the Court by using the ECF system which will send a notice of electronic filing to the following: Bradley J. Barmen (0076515) Theresa A. Sherman (0090971) Lewis Brisbois Bisgaard and Smith, LLP 1375 E. 9th Street, Suite 2250 Cleveland, OH 44114 T: 216-344-9422 F: 216-344-9421 Brad.Barmen@lewisbrisbois.com Tera.Sherman@lewisbrisbois.com Counsel for Defendant Berardi Partners, Inc. /s/David M. Rickert David M. Rickert (0010483)oR226 ag ranetin’ County Ohio Clerk of: Courts of the Common Pleas-.2018. Jul-09.12:47 PM-17CV001032 : = 4. oe leas- 2017 Mar 20 2 20 Pl C/OOPBAINTIFF’S Steed! Hammond |Paul 100 Yours of Architectars Inspired by the Community | | MEMORANDUM TO: George Berardi FROM: Josh Predovich a t RE: OSB/OSD SD Housing Design Services Fees | DATE: June 5%, 2007 ” Below is our attempt at laying out design service fees for the housing component of the Ohio State School for the Blind aid Ohio School for the Deaf project, Please review and be prepared ! to discuss after our design team update meeting on Thursday. . ‘ Housing Design Fee Structure : 1, Total Design Fee for SD Phase i : : i Proposed Building Area : 207/000sf (based original contract agreement) sy . Proposed Construction Cost: $33,120,000 ($160. Djs from OSEC agreement) : Proposed Fee percentage 6.5% , t Proposed total fee $2,152,800.00 : Percentage for SD fee . 2% | Proposed fee for SD $538,200.00 2 Housing Component Fee Structure -Housing Component: Proposed Area 64,235sf (based on latest draft of POR) ..-—... Housing Construction Cost .. $10,277,600.00 - ‘Total SD Design Fee for Housing $167,011.00 3. SD Housing design services fee for Berardi & Partners. Berardi & Partners $125,258.25 (75% of housing fee) 4. Assumptions : : A. Current draft of POR square footage is significantly higher than 207,000sf. Design SG service fees may be adjusted with completion of SD documents, SD estimate. Fee structure listed above is based on housing square footages of 64,235sf as ‘contained in the current draft of the POR (of 324,932sf). 250 Civic. Center Drive, Suite 200 Columbus, Ohio 43215 - 6-24 | fax 614-223-2130ong Common Pleas- 201 On Te B. Berardi & Partners will perform MEP and limited technology design in house and- coordinate systems with Dynamix. C. Structural design for *onsiag ‘will be performed by Shelly, Metz, ‘Bsnmann and Hawk, Inc. Please feel free to give me a call if you have any questions. . > Sincerely, : . STEED HAMMOND PAUL INC. Joshua L. Predovich, Associate ALA, LEED AP _ Project Manger 280 Civic Center Drive, Suite 200 Columbus, Ohio 43215 | AD-DIN | fax 614-223-2130 tee Mshp.com + . —Ticitreny | Wenn F: Tivering Ossie | Convervgtion Terie«Franklin County Ohio Clerk of-Courts-of the-Common Pleas- 2018 Jul 09 12:47:PM-47€V001032 Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 2:20 PM-17CV001032 dune 17,2011 Rolando Matias Project Manager Berardi + Partners, Inc. 369 East Livingston Avenue Columbus, OH 43215 Re: — Ohio Schoo! for the Deaf / Ohio State School for the Blind Additional Services Fee Agreement Dear Rolando, . Below is outline of the fee agreement we reviewed during our phone conversations from the week of May 23" as welll as our accounting of the fee paid and owed to B+P for ‘the above referenced project. Ohio State School for the Blirid - SHP Project Number 2007022.00 Original Contract Agreement Contract Value: $103,343.00 Invoiced: $103,343.00 (as of April 28", 2011) Paid to Date:’ $103,343.00 - . Remaining: $0.00 Ohio School for the Deaf ~ SHP Project Number 2007022.02 Original Contract Agreement ~ Contract Value: . $103,343.00 Invoiced: $103,343.00 (as of April 28", 2011) Paid to Date: $103,343.00 Remaining: $0.00 OSDB Additional Services Agreement Redesign services: $10,350.00 Dorm Re-bid (Able to billed immediately) SHAG ( CINGIMAATE semen cowie TL BENVER Abpea hoetpoaeny Romi sae eoe | CoG Heh trek | Rea aa Canter Trivers 200 | LORE Bieachieny Gute 2207 inns AEE Heanater, OTSAGIRLA | Goarrvey OAR Eicaven Ceteravts 89208 slasth2tianea SARE mie | BideeAZitmein =. | BEAR TAReNol | RERIGLSIRE fox AATESESS tee GREER tet REPORTER ‘SoedRemmd reat - ° . .oEze re peranktin County Ohio Clerk of Courts of the Common Pleas-:2018-Jul-09-42:47-PM-17CV001032 . Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 2:20 PM-17CV001032 _ Leatina CesIaN We appreciate all of the work your firm has provided during this challenging project and look forward to working with the team to finish strong. | would like to set a time to review your billing to date; | want to make sure we are in agreement on the invoicing numbers to date and the work required to complete the contract. . yt Please send back a signed copy acknowledging your acceptance of the additional services fee ~ } agreement oullined above and feel free to give me a call set up a meeting ‘to review invoicing. { Sincerely, SHP LEADING. DESIGN . . : . : 1 o Pago ! ‘Joshua L, Predovich, Assoc. AIA, LEED AP | Ce; Andrew Maleiz, SHP file { | i 1 : Accepted: . 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