CAUSE NO. INTERNATIONAL CENTER IN THE DISTRICT COURT OF DEVELOPMENT, IX, LTD., VS DALLAS COUNTY, TEXAS. Defendant JUDICIAL DISTRICT

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1 CAUSE NO. Filed 11 December 16 P12:12 Gary Fitzsimmons District Clerk Dallas District INTERNATIONAL CENTER IN THE DISTRICT COURT OF DEVELOPMENT, IX, LTD., Plaintiff VS DALLAS COUNTY, TEXAS BOKA POWELL, LLC, Defendant JUDICIAL DISTRICT PLAINTIFF S ORIGINAL PETITION AND RULE 194 REQUESTS FOR DISCLOSURES TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Plaintiff, International Center Development, IX, Ltd. ( International ) complaining of Defendant, BOKA Powell, LLC ( BOKA Powell ), and for same would show the Court as follows: I. DISCOVERY PLAN, PARTIES, AND VENUE 1. International desires to conduct discovery under Level 3 of Rule 190 of the Texas Rules of Civil Procedure. 2. International is a Texas limited partnership with its principal place of business in Dallas County, Texas. 3. BOKA Powell, LLC is a Texas limited liability company with its principal office and principle place of business in Dallas County, Texas. BOKA Powell may be served through its registered agent for service of process, Donald R Powell Jr., 8070 Park Lane, Suite 300, Dallas, Dallas County, Texas, Pursuant to TEX. CIV. PRAC. AND REM. CODE (a)(1) and (3), venue is proper in Dallas County, Texas because: (a) Defendant has its principal office in this County; PLAINTIFF S ORIGINAL PETITION AND RULE 194 REQUESTS FOR DISCLOSURES - PAGE

2 (b) all or a substantial part of the events or omissions giving rise to the claims occurred in this County; and (c) Plaintiff has its principal office in this County. Further, pursuant to TEX. CIV. PRAC. AND REM. CODE , mandatory venue is proper in Dallas County, Texas, to remove encumbrances from the title to real property owned by International which is located in Dallas County, Texas, and to quiet title to such real property. II. FACTUAL BACKGROUND 5. International is the owner and developer of the St. Ann Court Office Building and restaurant (the St. Ann Court Development or the Project ) located in the Uptown Area just north of downtown Dallas, Dallas County, Texas. This is a suit for damages by International against BOKA Powell caused by BOKA Powell s defective architectural services provided in the St. Ann Court Development; to remove BOKA Powell s mechanic s lien on the real property where the St Ann. Court Development is located; and to quiet title to the real property. 6. In late 2005 or early 2006, International decided to develop a 26-story office tower (the tallest in Uptown) next to the historic, two-story, red brick St. Ann s School located at 2514 Harry Hines, Dallas, Texas. In addition to development and construction of an office tower, the first floor of the school was to be preserved and converted to a restaurant, and the second floor was to be converted to a museum. 7. On March 29, 2006, BOKA Powell submitted a bid to perform architectural services for the St Ann Court Development, including development and construction of the office tower and conversion of the school. 8. On or about September 19, 2006, a Consulting Services Agreement (the Agreement ) was entered into by and between BOKA Powell and International for BOKA Powell to perform architectural services for the St. Ann Court Development. A true and correct PLAINTIFF S ORIGINAL PETITION AND RULE 194 REQUESTS FOR DISCLOSURES - PAGE

3 copy of the Agreement is attached hereto as Exhibit A and incorporated herein by reference for all purposes. 9. BOKA Powell retained Brockett/Davis/Drake, Inc. ( BDD ) and Purdy McGuire, Inc. ( PM ) to perform engineering services on the Project for the benefit of International. 10. Development and construction of the St. Ann Court Development began, and continued into the latter part of 2009, when International discovered that there were serious errors and omissions in the professional services that had been rendered by BOKA Powell, in the St. Ann Court Development. These errors and omissions included, inter alia, that: a. BOKA Powell failed to provide complete and unambiguous drawings in a timely manner and consistent with industry standards and in accordance with the Agreement; b. The drawings provided by BOKA Powell required an inordinate amount of revisions; c. BOKA Powell failed to provide necessary revisions in a timely manner; d. BOKA Powell failed to design certain areas of the St. Ann Court Development properly and in accordance with applicable codes, regulations and generally accepted standards, which required further revisions; and e. BOKA Powell failed to complete the performance of the services required in the Agreement, namely in its work performed on the old school which was to be utilized as retail space. 11. The errors and omissions generally described in paragraph 10 above are more specifically described below: a. BOKA Powell and its consultant omitted the structural supports for the Curtain Wall at floors, 4, 11 and 26 from the structural drawings. The omission is not included on structural drawings. A Construction Change Directive was executed as a result of BOKA Powell s error in the amount of $220, b. BOKA Powell, through PM, negligently designed the concrete beam which had insufficient clearance at the garage. The error was discovered PLAINTIFF S ORIGINAL PETITION AND RULE 194 REQUESTS FOR DISCLOSURES - PAGE

4 before the concrete was poured, but the re-design by BOKA Powell caused a three-day delay in the project schedule. The damages caused by the delay were $37, and the cost to implement Change Order Number 43 was $4, The total expense incurred for this negligent act was therefore $42, c. BOKA Powell, through PM, failed to properly design the sanitary sewer line so that it was installed at an improper elevation. The cost to correct this design defect was $118, d. BOKA Powell failed to properly design the electrical vault by failing to determine what the requirements of Oncor Electric Company were. As a result, the vault had to be re-designed and enlarged to meet Oncor s needs, which delayed the project by ten working days. The resulting damage to International as a result of BOKA Powell s failure to properly design the electrical vault was $227, e. BOKA (and its consultant Purdy-McGuire Inc.) failed to properly design the HVAC system that serves the Fitness Center and associated toilet and shower facilities. The design plans do not include an adequate and sufficient conditioned air supply for the Men s and Women s toilet and shower areas. The cost to correct this error is estimated at $16, f. BOKA Powell failed to comply with International s request to include clear glass in the main lobby. International had both an aesthetic and economic reason for wanting to include clear glass rather than reflective glass in the lobby. The use of clear glass would allow retail space in the lobby to be visible from the street. The cost to correct this error is $285, g. BOKA Powell failed to meet applicable code requirements in the design of the restroom doors. The doors swing to the wrong side, and the width of the doors was required to be 54 inches, and BOKA Powell designed them to be only 50 inches. The cost to remediate this design defect is $60, h. BOKA Powell negligently designed the elevator machine room stairs so that they failed to meet state code. As a result, an alternative route to service the elevator equipment had to be prepared. The cost for this remediation was $13, i. BOKA Powell selected sandblasted pre-cast concrete panels for the spandrels. BOKA Powell failed to advise International that these panels needed sealant to prevent a leaching of mineral deposits into the adjacent glass services. As a result, the glass had to be cleaned at a cost of $91, PLAINTIFF S ORIGINAL PETITION AND RULE 194 REQUESTS FOR DISCLOSURES - PAGE

5 12. To compound the negligent design problems, BOKA Powell impeded International s ability to close on the financing for the St. Ann Court Development by refusing to provide a Certificate of Final Completion for the project. 13. Despite its failure to perform and its breach of its professional and contractual duties to International, BOKA Powell filed a Mechanic s Lien in the Deed Records of Dallas County in the amount of $130,843.50, representing fees properly withheld by International after the discovery of BOKA Powell s negligent work. As a result of BOKA Powell s Mechanic s Lien, International was forced to bond around the Mechanic s Lien to complete the financing for the St. Ann Court Development at a cost to International of $157, As set forth above, as part of its duties under the Agreement for the Project, BOKA Powell was to perform architectural services to convert the old St. Ann school building to a restaurant and museum. BOKA Powell failed and refused to timely and properly perform the architectural services as required under the Agreement. International was forced to retain and pay another architectural firm to complete the Project at a cost to International of approximately $100, To the extent necessary, International invokes the discovery rule in asserting its claims in this case. 16. International has retained Daniel W. Figert, Architect, of Synergen Consulting International, to review the professional services rendered by BOKA Powell to International, including the adequacy of the drawings, plans and specifications rendered by BOKA Powell. Mr. Figert and his employees have also performed on-site inspections as part of their review of this matter. The Certificate of Merit executed by Mr. Figert, is attached hereto as Exhibit B PLAINTIFF S ORIGINAL PETITION AND RULE 194 REQUESTS FOR DISCLOSURES - PAGE

6 and incorporated herein for all purposes and as required by TEX. CIV. PRAC. AND REM. CODE In addition to other errors and omissions to be demonstrated at trial, and as noted in the Certificate of Merit attached hereto and incorporated by reference herein, Mr. Figert finds numerous defects, deficiencies, and omissions in the professional services rendered by BOKA Powell, including design defects as set forth in the Certificate of Merit and as set forth above. III. CLAIMS 18. International incorporates herein by reference the factual allegations contained in the foregoing paragraphs, the matters set forth in the Certificate of Merit attached as Exhibit B, and those matters in other attached Exhibits into all of its claims. STANDARD OF CARE 19. International relied on BOKA Powell to promulgate a design and development plan; and to perform other duties in accordance with the Agreement, state and local law and pursuant to the recognized standard of care for architects. 20. As International s architect and design professional and pursuant to the Agreement, BOKA Powell was required to exercise the degree of care, skill, competence and diligence that reasonably competent members of the architecture profession would exercise under similar circumstances and to use the skill and care in the performance of its duties commensurate with the requirements of the profession. 21. BOKA Powell s acts and omissions breached the applicable standards of care, resulting in damages to International. PLAINTIFF S ORIGINAL PETITION AND RULE 194 REQUESTS FOR DISCLOSURES - PAGE

7 COUNT ONE - NEGLIGENCE 22. BOKA Powell was required to exercise the degree of care, skill, and competence that reasonably competent members of its profession would exercise under similar circumstances and to use the skill and care in the performance of its duties commensurate with the requirements of this profession. 23. The deficiencies, errors and omissions in the design and development of the Project described above constitute professional negligence. BOKA Powell has breached its professional duties of care owed to International. 24. BOKA Powell s negligence was the proximate cause of damages to International in an amount in excess of the jurisdictional limits of this Court, for which International now sues. International s actual damages total at least $1,333, COUNT TWO - BREACH OF CONTRACT 25. The Agreement is a valid, enforceable contract between International and BOKA Powell. International performed, tendered performance and/or was excused from performance of its contractual obligations under the Agreement. 26. The acts and omissions of BOKA Powell as enumerated above breached the Agreement with International. As a result, International has suffered actual damages in at least the amount of $1,333, COUNT THREE - SUIT TO REMOVE CLOUD ON TITLE 27. International is the owner of real property which includes the St. Ann Court Development, as more particularly described in a deed to International dated October 29, 2010, recorded as Instrument number of the Deed Records of Dallas County, Texas, a PLAINTIFF S ORIGINAL PETITION AND RULE 194 REQUESTS FOR DISCLOSURES - PAGE

8 true and correct copy of which is attached hereto and incorporated herein as Exhibit C (the Property ). 28. As set forth above, BOKA Powell caused to be recorded a Mechanic s Lien on the St. Ann Court Development in the amount of $130,843.50, purporting to create a lien for security purposes on the Property. A true and correct copy of the Mechanic s Lien is attached hereto and incorporated herein by reference for all purposes as Exhibit D. 29. This lien was filed based upon fees that were properly withheld from BOKA Powell as a result of BOKA Powell s negligent and defective services. Accordingly, the Mechanic s Lien, although appearing valid on its face, is in fact invalid and of no force or effect. Pursuant to TEX. CIV. PRAC. AND REM. CODE , et. seq., International seeks a declaratory judgment that the Mechanic s Lien is invalid, and ordering it removed from the title to the Property, and quieting title in International. COUNT FOUR - ATTORNEYS FEES 30. International has been forced to retain the undersigned attorneys to pursue its claims against BOKA Powel. International has agreed to pay its attorneys reasonable fees for pursuing this case through trial and through any appeals of this case. 31. Pursuant to Section 13 of the Agreement, International prays for an award against BOKA Powell of reasonable attorneys fees for trial in this Court and conditional awards of attorneys fees for all appeals of this case. 32. Additionally, pursuant to TEX. CIV. PRAC. AND REM. CODE , International prays for an award against Defendants of reasonable attorneys fees and costs for trial in this Court and conditional awards of attorneys fees and costs for all appeals of this case. PLAINTIFF S ORIGINAL PETITION AND RULE 194 REQUESTS FOR DISCLOSURES - PAGE

9 33. Further, pursuant to TEX. CIV. PRAC. AND REM. CODE , International prays for an award against BOKA Powell of costs and reasonable and necessary attorneys fees as are equitable and just, for trial in this Court and all appeals of this case. IV. CONCLUSION 34. All conditions precedent to the granting of the relief herein requested have been satisfied. By the filing of this action, International makes no election of remedies and no waiver of any rights, claims or defenses but expressly reserves all such remedies, rights, claims and defenses. 35. International reserves the right to amend and supplement its claims as additional facts are developed. 36. International demands trial by jury as to all issues. V. REQUESTS FOR DISCLOSURES Pursuant to the Texas Rules of Civil Procedure, Plaintiff requests Defendant answer disclosures as required under Texas Rule of Civil Procedure 194 (a)-(i) and (l), VI. PRAYER WHEREFORE, PREMISES CONSIDERED, International Center Development IX, Ltd. prays: 1. That Defendant, BOKA Powell, LLC, be cited to appear and answer herein; 2. For judgment against BOKA Powell, LLC for all of International s actual, reliance and other damages as may be proven at trial of this cause; 3. For a declaratory judgment that the Mechanic s Lien is invalid, and ordering it removed from the title to the Property, and quieting title in International; PLAINTIFF S ORIGINAL PETITION AND RULE 194 REQUESTS FOR DISCLOSURES - PAGE

10 4. For an award of reasonable attorneys fees for trial in this Court and conditional awards of attorneys fees for all appeals of this cause; 5. For awards of pre- and post-judgment interest at the highest rates allowed by law; 6. For costs of court; and 7. For such other and further relief at law or in equity to which International may show itself to be justly entitled. Respectfully submitted, SPENCER, CRAIN, CUBBAGE, HEALY & McNAMARA, PLLC By: /s/ Deborah L. Sterling Brenda T. Cubbage Texas Bar No Deborah L. Sterling Texas Bar. No Elm Street, Suite 4100 Dallas, Texas Telephone Facsimile JOHNSTON TOBEY, P.C. Coyt Randal Johnston State Bar No Robert L. Tobey State Bar No Coyt Randal Johnston, Jr. State Bar No Oak Grove Avenue Dallas, Texas (214) Telephone (214) Telecopier ATTORNEYS FOR PLAINTIFF PLAINTIFF S ORIGINAL PETITION AND RULE 194 REQUESTS FOR DISCLOSURES - PAGE

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