HomeMy WebLinkAbout07-1509POWELL, TRACTMAN, LOGAN,
CARRLE & LOMBARDO, P.C.
Anthony S. Potter
PA Attorney I.D. No. 75903
114 North Second Street
Harrisburg, PA 17101
Tel. (717) 238-9300
FAX (717) 238-9325
Attorneys for James E. Baumgardner, Architect
JAMES E. BAUMGARDNER, Architect IN THE COURT OF COMMON PLEAS
V. OF CUMBERLAND COUNTY, PENNA.
BRAMBLES ARMS ASSOCIATES, L.P. NO. (37 - !S'd4 ?tc?t L
and :
THOMAS W. GAUGHEN, Individually
PETITION TO CONFIRM AWARD OF ARBITRATOR
AND NOW, Petitioner, James E. Baumgardner, Architect, by and through his
undersigned attorneys, hereby petitions this Court to enter an Order confirming the Arbitration
Award entered on November 7, 2006 as an Interim Award and, as amended, by the Final Award
on February 8, 2007. In support of this Petition, Petitioner states the following.
Petitioner, James E. Baumgardner, Architect ("Baumgardner") files this Petition
pursuant to Section 501 (a) of the Uniform Arbitration Act, 42 Pa.C.S. § 7342(b).
2. Baumgardner, Brambles Arms Associates, L.P. and Thomas W. Gaughen were
parties to an agreement for the provision of architectural services on a 206 apartment unit
complex known as Brambles Arms located in Hampden Township, Cumberland County ("the
Project").
3. A dispute arose between the parties relating toBaumgardner's right to payment
for its design work on the Project and Baumgardner's entitlement to certain termination expenses
set forth in the Agreement as a result of Gaughen and Brambles Arms Associates, L.P.
terminating the Project.
HB:56539v1 4059-03
4. Pursuant to the Agreement, all disputes and controversies between the parties
were required to be settled by arbitration under the American Arbitration Association
Construction Industry Rules.
5. Arbitration hearings in which both parties actively participated were conducted
before the American Arbitration Association at Case No. 14 110 01879 05 in accordance with the
terms of the Agreement.
6. At the arbitration hearings, the parties were provided with an opportunity to
present evidence and cross-examine opposing witnesses.
7. Following the hearings, the Arbitrator entered an Interim Award, a true and
correct copy of which is attached hereto as Exhibit "A" and made a part hereof, as follows:
To Claimant:
1. For architectural and engineering services performed ............ $200,829.60
2. For a termination fee of 5% of the fee for services performed, in
accordance with the Contract ................................ $10,041.48
3. For interest in accordance with §505(d) of the Act at 1% per month for 27
months ..................................................$56,935.20
4. For a penalty in accordance with §512(a) of the Act at I% per month for
27 months ................................................$56,935.20
5. For attorneys' fees and expenses in an amount to be determined in
accordance with §512(b) of the Act
6. For American Arbitration Association arbitration fees incurred by
Claimant .................................................... $0.00
7. for arbitrator fees incurred by Claimant ............................ $0.00
Interest and Penalties as specified in items numbered 3 and 4 above shall continue
to accrue at the rates therein specified until paid to Claimant in full. Interest on
any attorneys' fees and expenses hereafter awarded, shall accrue at the rate of 6%
HB:56539vl 4059-03 2
per annum from the date of any such award until paid in full.
See Interim Award at Exhibit "A."
8. After issuance of the Interim Award the Arbitrator entertained submissions on
Claimant Baumgardner's petition for Attorneys Fees and Expenses. A Final Award was entered
on February 8, 2007, which included $59,373.96 in attorneys' fees and expenses. (A true and
correct copy of the Final Award is attached hereto as Exhibit "B" and made a part hereof). The
Final Award provides, in relevant part, as follows:
For attorneys' fees and expenses, in accordance with §512(b) of the Act$59,373.96
Respondents shall promptly pay to Claimant the sum of THREE HUNDRED
EIGHT-FOUR THOUSAND ONE HUNDRED FIFTEEN AND FORTY-FOUR
ONE HUNDREDTHS DOLLARS ($384,115.44), plus interest, which is inclusive
of the award of attorneys' fees and the amounts as specified in the Tribunal's
November 7, 2006 Interim Award whic. (sic)
The administrative fees and expenses of the American Arbitration
Association totaling $4,000.00 and the compensation of the Arbitrator totaling
$19,360.00, shall be borne equally by the parties. Therefore, Respondents shall
reimburse Claimant the sum of $2,000.00 representing that portion of said fees in
excess of the apportioned costs previously incurred by Claimant.
See Exhibit "B".
9. Interest at 1% and the 1% penalty from the Interim Award dated November 7,
2006, through the date of filing is $25,979.28. This is calculated as follows: $324,741.48
principal on Interim Award, plus $12,989.64 (1% interest per month for 4 months pursuant to
Interim Award Paragraph 3), plus $12,989.64 (1% penalty per month for 4 months pursuant to
Interim Award Paragraph 4) through the date of filing. Baumgardner is also entitled to
$59,373.96 for attorneys fees and expenses under the Final Award plus $302.56 in interest on
Attorneys Fees and Expense award in Final Award (6% interest from date of entry February 8,
2007). This equals a total award through the date of filing of $410,397.28.
HB:56539vl 4059-03
10. More than thirty (30) days have elapsed since the date of the Final Award, and
Brambles Arms Associates, L.P. and Thomas W. Gaughen have not paid the amount of the award
nor have they taken any action to contest the validity of the Interim and Final Award of the
Arbitrator.
WHEREFORE, Petitioner, James E. Baumgardner respectfully requests this Honorable
Court enter an Order confirming the Arbitration Award, and that Judgment in accordance with
the Interim and Final Award of the Arbitrator be entered in favor of Petitioner and against
Respondent in the amount of $410,397.28 plus interest of 1% per month pursuant to 73 P.S.
§505(d); plus penalty of 1% per month pursuant to 73 P.S. §512(a) from March 13, 2007 to the
date of payment, plus all costs.
POWELL, TRACHTMAN, LOGAN,
CARRLE, & LOMBARDO, P.C.
By:
Antho S. Potter
Attorneys for Petitioner
Dated: March 13, 2007
HB:56539vl 4059-03
AMERICAN ARBITRATION ASSOCIATION n?
01
Construction Industry Arbitration Tribunal
In the Matter of the Arbitration between:
James E. Baumgardner, AIA ("Claimant")
and
Brambles Arms Associates, L.P. and
Thomas W. Gaughen, individually ("Respondents")
14 110 01879 05
INTERIM AWARD OF ARBITRATOR
I, THE UNDERSIGNED ARBITRATOR, having been designated in accordance
with the arbitration agreement entered into by the above-named parties and dated February 2,
2004, and having duly heard the proofs and allegations of the parties, FIND as follows:
Pursuant to a Standard Form of Agreement Between Owner and Architect for Housing Services
(AIA Document B 181), dated February 2, 2004 (the "Contract"), Claimant, an architect licensed
to practice architecture in Pennsylvania, performed architectural and engineering services for
Respondent Brambles Arms Associates, L.P. a Pennsylvania Limited Partnership ("Brambles"),
of which Respondent Thomas W. Gaughen ("Gaughen") is the general partner. No architectural
or engineering services were performed by Claimant for Gaughen in his individual capacity
pursuant to the Contract. Claimant's services were performed in connection with a 206 unit
multi-family residential project proposed to be developed by Brambles in Mechanicsburg,
Pennsylvania (the "Project"). Brambles terminated the Project after Claimant had performed a
substantial portion of its services in form and substance satisfactory to Brambles lending source,
but prior to beginning construction, due to a substantial increase in construction costs beyond
those previously anticipated by Brambles.
Notwithstanding its demands therefore, Brambles did not timely pay Claimant for services
performed, nor has Brambles paid Claimant for such services as of this date.
Brambles asserts that no payment is due and owing under the Contract because of an alleged
understanding that notwithstanding the provisions of the Contract, the parties to the Contract had
agreed that no payment would be made by Brambles to Claimant under the Contract unless and
until financing for the Project had been disbursed. Because Brambles chose not to construct the
Project as a result of increased construction costs, financing for the Project was never disbursed.
.James E. Baumgardner, AIA ("Claimant")
and
Brambles Arms Associates, L.P. and
Thomas W. Gaughen, individually ("Respondents")
14 110 01879 05
Claimant has asserted entitlement to interest, penalties and counsel fees and expenses pursuant to
the provisions of the Pennsylvania Contractor Subcontractor Payment Act, 73 P.S. § 501, et..seq.
(the "Act"). Respondents assert that the Act does not apply because of requirements of the U.S.
Department of Housing and Urban Development ("HUD"), which was to participate in the
Project financing. Respondents introduced into evidence an unsigned proposed addendum to the
Contract negating the applicability of the Act to the Contract. Respondents allege that the
addendum is a requirement of HUD's participation in the financing of the Project and that
Claimant agreed to be bound by all applicable HUD requirements. The proposed addendum was
part of an enclosure to a letter addressed to Gaughen dated June 10, 2004, approximately 4
months after the date of the Contract, from the law firm Ballard Spahr Andrews & Ingersoll,
LLP. The letter and its attachments were received by Gaughen after Claimant's services for
which it here seeks compensation, had been performed. Claimant alleges that he never saw the
proposed addendum and was not aware of its substance.
ACCORDINGLY, I AWARD AS FOLLOWS:
To Claimant:
1. For architectural and engineering services performed ..................................$200,829.60
2. For a termination fee of 5% of the fee for services performed, in accordance with the
Contract ............................................................................................................................$10,041.48
3. For interest in accordance with § 505(d) of the Act at 1% per month for 27 months
........................................................................................................ $56,935.20
4. For a penalty in accordance with § 512(a) of the Act at 1% per month for 27 month
........................................................................................................$56,935 20
5. For attorneys' fees and expenses in an amount to be determined in accordance with § 512(b)
of the Act
6. For American Arbitration Association arbitration fees incurred by Claimant ...............$0.00
7. For arbitrator fees incurred by Claimant ..........................................................$0.00
Interest and Penalties as specified in items numbered 3 and 4 above shall continue to accrue at
the rates therein specified until paid to Claimant in full. Interest on any attorneys' fees and
expenses hereafter awarded, shall accrue at the rate of 6% per annum from the date of any such
award until paid in full.
-2-
'James E. Baumgardner, AIA ("Claimant")
and
Brambles Arms Associates, L.P. and
Thomas W. Gaughen, individually ("Respondents")
14 110 01879 05
The hearings in this matter are hereby reopened. Not later than 5:00 pm on the date which shall
be 10 calendar days after the date of this Interim Award, Claimant shall deliver to Respondent a
statement of counsel fees and expenses for which it seeks reimbursement, together with
reasonable back up for such fees and expenses. Respondents may respond to such statement by
delivering to Claimant a writing not later than 10 business days after having received such
statement and back up, detailing any objections it may have to such statement.
THIS IS NOT A FINAL AWARD. IT IS AN INTERIM AWARD. THE TRIBUNAL
RETAINS JURISDICTION OVER THIS CASE UNTIL A FINAL AWARD IS ISSUED.
11.1`7 G
Date
Louis
I, Louis Coffey, do hereby affirm upon my oath as Arbitrator that I am the indi
described in and who executed this instrument, which is my Interim Award.
/Z /7/-06
Date
-3-
AMERICAN ARBITRATION ASSOCIATION
Construction Industry Arbitration Tribunal
in the Matter of the Arbitration between:
James E. Baumgardner, AIA ("Claimant")
and
Brambles Arms Associates, L.P. and
Thomas W. Gaughen, individually ("Respondents")
14 110 01879 05
FINAL AWARD OF ARBITRATOR
I, THE UNDERSIGNED ARBITRATOR, having been designated in accordance with the
arbitration agreement entered into by the above-named parties and dated February 2, 2004, and
having duly heard the proofs and allegations of the parties, FIND as follows:
Pursuant to an Interim Award dated November 7, 2006, the Tribunal awarded certain sums to
Claimant, leaving open only the issue of legal fees requested by Claimant.
Claimant has asserted entitlement to, among other items, counsel fees in the amount of
$68,412.71, pursuant to the provisions of the Pennsylvania Contractor Subcontractor Payment
Act, 73 P.S. § 501, e..seq. (the "Act"). Respondents assert that the Act does not apply because
of requirements of the U.S. Department of Housing and Urban Development ("HUD").
Respondents also assert that: (a) legal fees should not be awarded to Claimant because
Respondent withheld payment to Claimant in good faith and, therefore, is excused under the
provisions of the Act; and, in the alternative, (b) any award of legal fees to Claimant should be
reduced by the sum of $13,676.25 for various reasons set forth in Respondent's January 17,
2006(sic) submission.
ACCORDINGLY, I AWARD AS FOLLOWS:
To Claimant:
For attorneys' fees and expenses, in accordance with § 512(b) of the Act .................$59,373.96
Respondents shall promptly pay to Claimant the sum of THREE HUNDRED EIGHTY-FOUR
THOUSAND ONE HUNDRED FIFTEEN AND FORTY-FOUR ONE-HUNDREDTHS
DOLLARS ($384,115.44), plus interest, which is inclusive of the award of attorneys fees and the
amounts as specified in the Tribunal's November 7, 2006 Interim Award whic.
The administrative fees and expenses of the American Arbitration Association totaling
$4,000.00, and the compensation of the Arbitrator totaling $19,360.00, shall be borne equally by
the parties. Therefore, Respondents shall reimburse Claimant the sum of $2,000.00, representing
that portion of said fees in excess of the apportioned costs previously incurred by Claimant.
4-
James E. Baumgardner, AIA ("Claimant")
and
Brambles Arms Associates, L.P. and
Thomas W. Gaughen, individually ("Respondents")
14 110 01879 05
This Award is a final award, in full settlement of all claims, counterclaims and demands for set-
offs submitted to this arbitration proceeding. All claims not expressly granted herein are hereby
denied. This Award is in addition to, and not in-lieu of, the Tribunal's Interim Award dated
November 7, 2007, which Interim Award is hereby incorporated by reference in this Final Award
which, in the aggregate, is $384,115.44, plus interest. '01-
Date
I, Louis Coffey, do hereby affirm upon my oath as Arbitrator that I am
described in and who executed this instrument, which is my Interim Award.
ate
individual
-2-
CERTIFICATE OF SERVICE
AND NOW, on March 13, 2007, I hereby certify that I have served a true and correct
copy of the within Petition to Confirm Award of Arbitrator upon the following person(s) by
regular first class United States mail, postage prepaid:
Victor P. Stabile, Esq.
Dilworth Paxson LLP
112 Market Street, 8th Floor
Harrisburg, PA 17101
- ---
Anthon . Potter
Q "? d
(AJ
? g
f
w
C:Z?
JAMES E. BAUMGARDNER, Architect
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
BRAMBLES ARMS ASSOCIATES, L. P
07-1509 CIVIL TERM
and
THOMAS W. GAUGHEN, Individually
IN RE: PETITION TO CONFIRM AWARD OF ARBITRATOR
ORDER OF COURT
AND NOW, April 2, 2007, a Rule is issued on the Defendants to show cause why the
relief requested in the Petition to Confirm Award ought not to be granted. This Rule is returnable
twenty (20) days after service.
By the Court,
Kevin ,K Hess, J.
An ny S. Potter, Esquire
owell, Trachtman, Logan, Carrie & Lombardo, P.C.
114 North Second Street
Harrisburg, PA 17101
For the Petitioner
ictor P. Stabile, Esquire
Dilworth Paxson LLP 1
112 Market Street
8th Floor
Harrisburg, PA 17101
L £ :C Hd Z- 888 LOOZ
Abv'01i ," -L. ".-J ?I?i ??
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLAVANIA
JAMES E. BAUMGARDNER, Architect :
V. .
BRAMBLES ARMS ASSOCIATES, L.P.: 07-1509 CIVIL TERM
and
THOMAS W. GAUGHEN, Individually :
RESPONDENTS' ANSWER TO PETITION TO
CONFIRM AWARD OF ARBITRATOR
Respondents Brambles Arms Associates, LP ("Brambles") and Thomas W.
Gaughen, individually ("Gaughen"), hereby answer the petition of James E.
Baumgardner ("Baumgardner") to confirm award of arbitrator as follows:
1. Denied as a legal conclusion requiring no response.
2. Admitted and denied. It is admitted that Brambles, by and through its General
Partner, Thomas W. Gaughen, was a party to an agreement, as amended, dated February
2°d, 2004 with Baumgardner (the "Agreement") for a four (4) story building with 206
units. A copy of that Agreement, which was attached to Baumgardner's arbitration
demand, is attached hereto as Exhibit "A". The Agreement clearly evidences, both on its
face and at the signatures lines for the main agreement as well as at the amendment, that
Thomas W. Gaughen was designated as and only signing as the General Partner of the
Brambles. At no time did Thomas W. Gaughen ever sign in his "individual" capacity as
has been alleged by Baumgardner. All remaining averments are also denied.
3. Admitted and denied. Admitted a dispute arose as to Baumgardner's entitlement
to payment under the Agreement and that the Brambles, through Gaughen, as its General
Partner, was forced to terminate the Agreement. All remaining averments are denied.
4. Admitted that the Agreement provided for all disputes to be submitted to
arbitration. Denied that Gaughen, in his individual capacity, was a party to the
Agreement.
Admitted arbitration proceedings were conducted as stated, except Gaughen was
improperly named in his individual capacity.
6. Admitted, except Gaughen was improperly named in his individual capacity.
7. Denied in that the "Interim Award" is a document which speaks for itself and is
attached to Baumgardner's petition. By way of further response, Baumgardner does not
inform the Court that the Interim Award at page 1 specifically noted:
"...Claimant, an architect licensed to practice architecture in
Pennsylvania, performed architectural and engineering
services for Respondent Brambles Arms Associates, L.P. a
Pennsylvania Limited Partnership (`Brambles"), of which
Respondent Thomas W. Gaughen ("Gaughen") is the general
partner. No architectural or engineering services were
performed by Claimant for Gaughen in his individual
capacity pursuant to the Contract." (Emphasis added).
The Interim Award made clear and was specific to distinguish between Gaughen acting
in his capacity as the General Partner for the Brambles and in his individual capacity, the
latter of which was found not to exist by the arbitrator.
8. Denied in that the "Final Award" is a document which speaks for itself and is
attached as Exhibit "B" to Baumgardner's petition. By way of further response, the Final
Award expressly incorporated by reference the Interim Award, thus also making clear
that there was no contract with Gaughen in his individual capacity.
9. Denied in that both the Interim Award and Final Award are documents which
speak for themselves.
10. Admitted more than 30 days has elapsed from the Final Award and no payment
has been made nor has any action been taken to contest either the Interim Award or Final
Award, except as stated in this response and as further averred below.
Baumgardner's petition is contested to the extent he seeks the entry of a judgment
against parties other than the "Brambles". Baumgardner named the Brambles and
Gaughen, in his individual capacity, as respondents to the arbitration proceedings that he
filed. Baumgardner never named Gaughen in his capacity as the "General Partner" of the
Brambles which was the capacity clearly indicated on the Agreement in multiple places.
The arbitrator expressly found no agreement was with Gaughen in his "individual"
capacity, the capacity in which Baumgardner named Gaughen to this suit. Since only the
Brambles remains as a named party, judgment is only properly entered against the
Brambles. Pennsylvania Rules of Civil Procedure compel such a result.
Pa. R.C.P. 2128 provides in pertinent part as follows:
(a) An action against a partnerships may be
prosecuted against one or more partners as individuals
trading as the partnership in the manner designated by
Rule 2127(a), or against the partnership in its firm
name.
Pa. R.C.P. 2132 provides in pertinent part as follows:
(a) A judgment entered against a defendant partnership sued in
its firm name only shall support execution upon the
partnership property only.
(b) A judgment entered against a defendant partnership sued in
the name or names of the partners as individuals trading in
the firm name shall support execution upon the partnership
' Pa. R.C.P. 2126 provides that the term "partnership" includes both general and limited partnerships.
property and upon the individual property of any partner
named as a party....
PA R.C.P. 2133 provides in pertinent part as follows:
(a) A judgment against a partnership shall be indexed
against the partnership in its firm name.
(b) A judgment against an individual partner shall be
indexed against the partner as an individual.
Collectively, these rules make clear that (a) individuals trading as partners must be
identified as such in suits against a partnership and/or any of its members to support the
indexing of a judgment against an individual partner, and (b) a judgment against a
partnership shall be indexed only against the partnership and shall support execution only
upon partnership property. Since Baumgardner never named Gaughen in his partnership
capacity, but improperly attempted to name him in his "individual" capacity (which was
rejected by the arbitrator) judgment may only be entered against the Brambles and
execution may then only be had upon Brambles property.
WHEREFORE, the Respondents respectfully request that judgment only be
entered against the Brambles and not against Gaughen, and then only in the amount as
indicated in the arbitration award.
Respectfully submitted,
"'Victor P. ile, squire
Dilworth Paxson LLP
112 Market Street, 8t' Fl.
Harrisburg, PA 17101
(717) 236-4812
Dated: April 23, 2007
VERIFICATION
I, Victor P. Stabile, Esquire, do hereby affirm that the facts in the foregoing
document are true to the best of my knowledge, information, and belief, and are made
subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to
authorities.
Victor . a i e
._.. I-=-; -7/( ilincia Mai - ?, c'c'l1Y)111t." t TnTil
Standard ForIT) of Agreement Between
Owner and Architect for Housing Services
1111` I10(:11MCN1 11.15 if, PORTMil' 1.1:1:.11 ( c)N.SlQH1N('IS; CON51tI:rKNON Wit'il AN ,1.11t111NE'Y IS ENCOURAGED wri-ii RESt'Ln T'o 11's
t,(11t1('Lt:fi!)1: OR KPII)HICY110lr. Alililfi!'ll(:1lIrIP' (W 11115 I:Lft"1WONICAI.LY DRAi-1111) AIA DOCUMENT MAY 11E MillDE RY (ISING AIA
0)1.1-right 8);R 11:1 1tK)1 Ily Ilie Ameticall 11wilille tut rYr1"11ilet.k, I; 15 Nov York Avome, N.W., \1',idlillgltil) I)•( 1006-5291. Reprcltluditllt ofthe material herein or
.llhchultial (Innlation tut its prm•idolls tail!loll) in•nnirNioll )I ihr• VA t inlnles file cutlyright InNt•S tti the t Iniled slntrt will will subject tilt: violator to ltpal prosecttion,
1994 Edition
AGREEMENT
_g riraty in the tt :tr elf 2Q04
made as of the $11collcl 41,11• of F
On unnlc. indit:)lc tin. ///rrnlh arrt! lrarl
BETWEEN the Owner:
Brambles Arms Ass?,,?.a p?tlnsy(vania Ljtrltf't1 Partf).erst?IR._?Y its. 0slleral.2-adneG Thomas W. Gauabon.
P.O. Box 686
.1_0(300
?6II1P1?'B 179Q,
and the Architect:
L?c?mt• nnt/mitlnscl
games E. Baum96L[_A_R_QHI_TEC 1•.
_141@=dWay,_&j1e 220
Hamer. PA 1733.
ror the following Project:
tllh/txktkY.rliti<lt?arl)uitrnnr"1't2,AvilcH;Ohm,•h frrssandreopt%
BMmbles Arms pat n jo
i_ernmb e3-Arms. Ass
5300 Eerier Street
MaGhanlcsbura PA L7D
Algcl?Inl..naSln? of.r,t)Ei arils and.
ltlciucles._f?ro etors.._a_!> nts?ro?s?P[iulSl??Xtem• a8d an RLd4tnri8ii?
alarm watem.
Do W&M of work 1!'lgf.41 as pmyjslSltj for all prof-qas gnaI dsian_rejalgd_services including architecturai enalneedna for
l?IL?t iLr?l. and civil._!$??d?p{n° t:In?Pt?ll91'.sit8$igil?gil?_s?ll?tiut<#1s2Cl.?StR?OCI$I41?.
7'he Owner and the Architect agree as set forth helow.
TERMS AND COND111ONS OF "1'111', AGRUTMENT
BF.I. WI.1N OWNER AND AWA 1ITEX"'T
ARTICLE 1
ARCIfITECT'S RESPONSIRi ITIF.S
1.1 ARCHITECr'S SERVICES
1.1.1 'Ilse Architect's services l.ollsio tll• thost, 'wiviies
l'ierfornted by the Architect, Architect's eniployvcs and
Architect's consultants as enrrnlepilecl in Articles ? .mal .1 of
Ihis Agreement and airy other set-vices itichided in Arliclc• 1z.
1.1.2 1 he ArvI)i1ect's services shall be performed as
exPedilitlusly as is co"sistent with professional skill and care
and the orderly progress of the Work. Upon request of the
Owner, lite Archilect shall submit for the Owner's approval a
schedule fin• the perl'rrinance of the Architect's services that
inny be adjtisled as lire Project proceeds, and that shall include
;tllowmwes for herinKis of titre required ror the Owner's review
and for approval of submissions by authorities having
jurisdiction over the Project. 7irne Limits established by this
scheditle ;yproved by Ihr Owner shall not, except for
reasorr.thle cmise, he exceede;l by the Architect or Owner.
0 1994 - tFi E C MNS TFUTE i 1R f C? TS,r1 ANEW YORK AVENUE, N.W., WASHINGTON.
D.C. 70006-3292. AIA DOCUMENT BIB; -
OWNER-ARCHITECT AGREEMENT FOR iAGUSING SERVICES - AIA019 - WARNING: Unlicensed photocopying violates U.S. copyrlght laws and will subject
the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced In accordance with your
license without violation until the date of expiration aq noted below, expiration as noted below. User Documrnt: 0249.doc -- 212004. AiA License
Number 1016321, which expires on 7/30!2004.
( EXHIBIT Electronic Format 8181-1994
1
•
bids or negotiated proposals and assist in awarding contracts
Jae for construction.
2.5 CONSTRUCTION PHASE ADMINISTRATION
ARTICLE 2
SCOPE Of ARCHITECT'S BASK SERVICES Of THE CONSTRUCTION CONTRACT
2.1 DEFINITION
2.1.1 The Architect's Basic Services consist of those
described in paragraphs 2.2 through 2.6 and any other services
identified in Article 12 as part of Basic Services, and include
normal civil, structural, mechanical' and electrical engineering
services.
2.2 DESIGN PHASE
2.2.1 17?e Architect shall review the program furnished by
the Owner to ascertain the requirements of the Project and
shall arrive at a mutual understanding of such requirements
with the Owner.
2.2.2 The Architect shall provide a preliminary evaluation
of the Owner's program, schedule and construction budget
requirements, each in terms of the other, subject to the
limitations set forth in Subparagraph 5.2.2,
2.2.3 The Architect shall review with the Owner alternative
approaches to design and construction of the Project.
2.2.4 Based on the mutually agreed-upon program,
schedule and construction budget requirements, the Architect
shall prepare, for approval by the Owner, Design Documents
consisting of drawings and other documents appropriate for
the Project.
2.3 CONSTRUCTION DOCUMENTS PHASE
2.3.1 Based on the approved Design Documents and any
further adjustments in the scope or quality of the Project or in
the construction budget authorized by the Owner, the
Architect shall prepare, for approval by the Owner,
Construction Documents consisting of Drawings and
Specifications setting forth in detail the requirements for
construction of the Project.
2.3.2 The Architect shall assist the owner in the
preparation of the necessary bidding information, bidding
forms, the Conditions of the Contract, and the form of
Agreement between the Owner and Contractor.
2.3.3 The Architect shall assist the Owner in connection
with the Owner's responsibility for filing documents required
for the approval of governmental authorities having
jurisdiction over the Project.
2.4 BIDDING OR NEGOTIATION PHASE
2.4.1 Following the Owner's approval of the Construction
Documents, the Architect shall assist the Owner in obtaining
2.5.1 71te Architect's responsibility to provide Basic
Services for the Construction Phase under this Agreement
commences with the award of the Contract for Construction
and terminates at the earlier of the issuance to lthe Owner of
the final Certificate for Payment or 6o days after the date of
Substantial Completion of the Work.
2.5.2 I'he Architect shall provide administration of the
Contract for Construction as set forth below and in the
edition of AIA Document.:A2ot, General Conditions of the
Contract for Construction, current as of the date of this
Agreement, unless otherwise provided in this Agreement.
2.5.3 Duties, responsibilities and (imitations of authority of
the Architect shall not be restricted, modified or extended
without written agreement of the Owner and the Architect,
with the consent of the Contractor, which consent shall not
be unreasonably withheld.
2.5.4 The Architect shall be a representative of and shall
advise and consult with the Owner (t) during construction
until final payment to the Contractor is due, and (2) as an
Additional Service at the owner's direction from time to time
during the correction period described in the Contract for
Construction. Ilia Architect shall have authority to act on
behalf of the Owner only to the extent provided in this
Agreement unless otherwise modified by written instrument.
Instructions to the Contractor shall be forwarded through the
Architect.
2.5.5 7'he Architect shall visit the site at intervals
appro hate to the stage of construction (or as otherwise
agreec by the Architect in writing) to become generally
familiar with the progress and quality of the Work and to
determine in general if the Work when completed will be in
accordance with the Contract Documents. However, the
Architect shall not be required to make exhaustive or
continuous on-site inspections to check the quality or
quantity of the Work. On the basis of on-site observations as
an architect, the Architect shall keep the Owner informed of
the progress and quality of the Work, and shall endeavor to
guard the Owner against defects and deficiencies in the Work.
(More extensive site representation may be agreed to as an
Aeditional Service, as desctilx-d in A, ragraph j2.)
2.5.5 "Fite Architect shall not have control over, charge of,
or responsibility for construction means, methods,
techniques, sequences or procedures, or for safety precautions
and programs in connection with the Work, since these are
solely the Contractor's responsibility under the Contract for
Construction. The Architect shall not be responsible for the
Contractor's schedules or failure to carry out the Work in
accordance with the Contract Documents. The Architect
shall not have control over or charge of acts or omissions of
ARCHITECTS, 0 1994 - THE XMERICXA INSTITUTE OF 1735 NEW Y6RK AVENUE, NX, WASHINGTON, .20006-5292. A
OWNER-ARCHITECT AGREEMENT FOR HOUSING SERVICES - AIA® - WARNING: Unlicensed photocopying violates U.S. copyright taws and will subject
the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your
license without violation until the date of expiration as noted below, expiration as noted below. user Document:0249.doc - 2/2/2004. AiA License
Number 1016321, which expires on 7130/1004.
Electronic format 8191-1994
2
& Contractor, Subcontractors, or their agents or ernlrloyees,
or any other persons performing any, of the Work.
2.5.7 The Architect shall at all times have access to the
Work, wherever it is in preparation or progress.
2.5.8 Based on the Architect's observations mid evaluations
of the Contractor's Applications for Payment, the Architect
shall review and certify the amounts due the Contractor.
2.5.9 The Architect's certification for payment shall
constitute a representation to the Owner that the Work has
p reased to the point indicated, and that to the best of the
Architect's knowledge, information and belief, the quality of
the Work is in accordance with the Contract Documents.
Such certification shall be based on the Architect's
observations at the site as provided in Subparagraph 2.5.5 and
on the data comprising the Contractor's Application for
Payment. The foregoing representations are subject to art
evaluation of the Work for conformance to the Contract
Documents upon Substantial Completion, to results of
subsequent tests and inspections, to minor deviations fioni
the Contract Documents correctable prior to completion and
to any specific qualifications expressed by the Architect. The
issuance of a Certificate for Payment shall further constitute a
representation that the Contractor is entitled to payment in
the amount certified. However, the issuance of a Certificate
for Payment shall not be a representation that the Architect
has (r) made exhaustive or continuous on-site inspections to
check the quality or quantity of the Work; (x) reviewed
construction means, methods, techniques, sequences or
procedures; (3) reviewed copies of uisitions received from
Subcontractors and material suppliers and other data
requested by the Owner to substantiate the Contractor's right
to payment; or (4) ascertained how or for what !purpose the
Contractor has used money paid on account of the Contract
Sum.
2.5.10 The Architect shall have authority to reject Work that
does not conform to the Contract Documents. Whenever the
Architect considers it necessary or advisable for
implementation of the intent of the Contract Documents, the
Architect will have authority to require additional inspection
or testing of the Work in accordance with the provisions of the
Contract Documents, whether or not such Work is fabricated,
installed or conpleted. However, neither this authority of the
Architect nor a decision made in good faith either. to exercise
or not to exercise such authority shall give rise to a duty or
responsibility of the Architect to the Contractor,
Subcontractors, material and equipment suppliers, their agents
or employees, or other personst',perforrning portions of the
Work.
2.5.11 The Architect shall review and approve or take other
appropriate action upon the Contractors submittals such as
Shop Drawings, Product Data and Samples, but only for the
limited purpose of checking for conformance with
information given and the design concept expressed in the
Contract Documents. The Architect's actions shall be taken
with reasonable promptness so as to cause no delay in the
work or in the construction of the Owner or of separate
contractors, while allowing sufficient time (in the Architect's
professional judgment) to permit adequate review. The
Architect's approval of a specific item shall not indicate
approval of an assembly of which that item is a component.
2.5.12 The Architect shall prepare Change Orders for the
Owner's approval and execution, and shall have authority to
order minor changes in the 'Work not involving an adjustment
in the Contract Sum or an extension of the Contract Time.
2.5.13 The Architect shall conduct inspections to determine
the date of Substantial Completion and the data of final
completion, and shall issue a final Certificate for payment.
2.5.14 The Architect shall interpret and decide matters
concerning performance of the Owner and Contractor under
ilie requirements of the Contract Documents on written
request of either the Owner or Contractor. The Architect's
response to such requests shall be made with reasonable
promptness and within anytime limits agreed upon.
2.5.15 Interpretations and decisions of the Architect shall be
consistent with the intent of and reasonably inferable from the
Contract Documents and shall be in writing or in the forth of
drawings. When making such interpretations and initial
decisions, the Architect shall endeavor to secure faithful
performance by both Owner and Contractor, shall not show
partiality to either, and shall not be liable for results of
interpretalions or decisions rendered in good faith in such
capacity.
ARTICLE 3
ADDITIONAL SERVICES
3.1 Additional Services shall be provided if authorized or
confinned in writing by the Owner or if included in Article io,
and shall be paid for by the Owner as provided in this
Agreement.
3.2 If the Owner and the Architect agree that more
extensive representation at the site than is described in
Subparagraph 2.5.5 shall be provided, such additional project
representation shall be provided and paid for as set forth in
Article 12.
ARTICLE 4
THE OWNER'S RESPONSIBILITIES
4.1 . 'The Owner shall provide full information, including
a program setting forth the Owner's design objectives,
constraints and criteria. The Owner shall establish an update
an overall budget for (lie Project, including the Constniclion
Cost, the Owner's other costs and reasonable contingencies
related to all of these costs. If requested by the Architect, the
Owner shall furnish evidence that financial arrangements have
been made to fulfill the Owner's obligations under this
Agreement.
4.2 31ie Owner shall designate a representative
0 1"4 - THE AMERICAN INITITUTE OF XRZHITECTS, 173S NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20M6-5292. AIA DOCUMENT BIB] -
OWNER-ARCHITECT AGREEMENT FOR HOUSING SERVICES - AIA® - WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject
the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced In accordance with your
license without violation until the date of expiration as noted below. expiration as noted below. User Document: 0249.doc -- 2/2/2004. AIA License
Number 1015321, which expires on 7/3aV2004.
Electronic Format 8181-1494
afthorized to act on the owner's behalf with respect to the
Project. The Owner or such authorized representative shall
render decisions pertaining to documents submitted by the
Architect in a timely manner, so as to avoid unreasonable
delay in the orderly and sequential progress of the Architect's
services.
4.3 The Owner shall furnish a legal description and a
certified land survey of the site, and the services of
geotechnical engineers or other consultants when such services
are deemed necessary by the Architect. Such services may
include but are not limited to topographic surveys, test
borutggss, test pits, determinations of soil bearing values,
percolation tests, evaluations of hazardous materials, ground
corrosion and resistivity tests, including necessary operations
for anticipating subsoil conditions. The services of
geotechnical engt'neerO or other consultants shall include
preparation and submission of all appropriate reports and
professional recommendations.
4.4 The Owner shall furnish structural, mechanical,
chemical, air and water pollution tests, tests for hazardous
materials, and other laboratory and environmental tests,
inspections and reports as required by law or the Contract
Documents.
4.5 The Owner shall furnish all legal, accounting and
insurance counseling services as may be necessary at any time
for the Project, including auditing services the Owner may
require to verify the Contractors Applications for Payment or
to ascertain how or for what purposes the Contractor has used
the money paid by or on behalt of the Owner. The Owner
shall furnish the services of other consultants when such
services are reasonably required by the scope of the Project
and are requested by the Architect.
4.6 The Owner, unless otherwise provided in Article 14,
shall furnish all legal, accounting, planning, estimating and
other services and expenses required to prepare, present and
process any application for governmental or private financing,
mortgage insurance or subsidy.
4.8 The services, information , surveys an r po s
required by Paragraphs 4.3 through 4.7, inclusive, shall pre
furnished at the Owner's expense, and the Architect shall be
entitled to rely upon the accuracy and completeness thereof.
4.9 Prompt written notice shall be given by the Owner to
the Architect if the Owner becomes aware of any fault or
defect in the Project or nonconformance with the Contract
Documents.
4.10 The proposed language r f certificates or certifications
requested of the Architect or Architect's consultants shall be
submitted to the Architect -for review and approval at least 14
days prior to execution. " The Owner shall not request
certifications that would require knowledge or services beyond
the scope of this Agreement.
ARTICLE 5
CONSTRUCTION COST
5.1 DEFINITION
5.1.1 't'he Constntction Cost shall be the total cost or
estimated cost to the Owner of all elements of the Project
designed or specified by the Architect.
5.1.2 The Construction Cost shall include the cost at
current market rates of labor and materials furnished by the
owner and any equipment which has been designed,
specified, selected or specially provided for by the Architect,
plus a reasonable allowance for the Contractor's overhead and
profit. In addition, a reasonable allowance for contingencies
shall be included for market conditions at the time of bidding
and for changes in the Work during construction.
5.1.3 Construction Cost does not include the
coatpeiisation of the Architect and the Architect's consultants,
the cost of the land, rights-of-way, financing or other costs
that are the responsibility of the Owner as provided in Article
4-
5.2 RESPONSIBILITY FOR CONSTRUCTION
COST
5.2.1 It is recognized that neither the Architect nor the
Owner has control over the cost of labor, materials or
equipment, over the Contractor's methods of determining bid
prices, or over competitive bidding, market or negotiating
conditions. Accordingly, the Architect can not and does not
warrant or represent that bids or negotiated prices will not vary
from the Owner's Project budget or from any preliminary
estimate of Construction Cost or other cost estimate or
evaluation. Any Project budget shall be adjusted to reflect
changes in the general level of prices in the construction
industry between the date of submission of the Construction
Documents to the Owner and the date on which bids or
negotiated proposals are sought.
5.2.2 No fixed limit of Construction Cost shall be
established as a condition of this Agreement by the furnsshen ,
proposal or establishment of a Project budget, unless such
Fixed limit has been agreed upon in writing and signed by the
parties hereto. If such a fixed limit has been established, the
Architect shall be permitted to include contingencies for
design, bidding and price escalation; to determine what
materials, equipment, component systems and types of
construction are to be included in the Contract Documents; to
make reasonable adjustments in the scope of the Project; and
to include in the Contract Documents alternate bids to adjust
the Construction Cost to the fixed limit. Fixed limits, if any,
shall be increased in the amount of an increase in the Contract
Sum occurring after execution of the Contract for
OMRCHITECTS, 1735 14EW YORK A , R.., WASHINGTON, =9:5292.
OWNER-ARCHITECT AGREEMENT FOR HOUSING SERVICES - AIAM - WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject
the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your
license without violation until the date of expiration as noted below. expiration as noted below. User Document: 0249.doc -- 2!2/2004. AIA License
Number 1016321, which expires on NXV2004.
Electronic Format x181-1994
4
Construction.
5.2.3 if the Project budget or fixed limit of Construction
Cost is exceeded by the lowest bona fide bid or negotiated
proposal, the Owner shall:
A give written approval of an increase in the Project
budget or the fixed limit;
.2 authorize rebidding or renegotiating the Project
within a reasonable tithe;
.3 if the Project is abandelied, terminate in accordance
with Paragraph 8.2; or
.4 cooperate in revising the Project scope and duality as
required to reduce the Construction Cost.
5.2.4 if the Owner chooses to proceed under Clause 5.2.3.4,
the Architect shall endeavor to comply with the Project budget
or the fixed limit of Construction Cost by making
modifications to the Contract Documents. The making of
such modifications shall be the limit of the Architect's
responsibility arising out of the establishment of a Project
budget or a feed limit of Construction Cost. If a fixed limit
has been established as a Condition of this Agreement, the
Architect shall not obtain an increase in compensation for
making such modifications unless the fixed limit has been
exceeded due to inaccurate cost estimating by the Owner's
consultant. If no fixed limit has been established, the
Architect shall receive an increase in compensation for making
such modifications. The Architect shall be entitled to
compensation in accordance with this Agreement for all
services perforated, whether or not the Conslntction Phase is
commenced.
ARTICLE 6
USE OF ARCHITECT'S DRAWINGS,
SPECIFICATIONS AND OTHER DOCUMENTS
6.1 The Drawings, Specifications and other documents
prepared by the Architect for this Project are instruments of
the Architect's service for use solely with respect to this
Project, and unless otherwise provided, the Architect shall be
deemed the author of these documents and shall retain all
common law, statutory and other reserved rights, inchxiing
the copyright. The Owner sliall be permitted to retain copies,
including reproducible copies, of the Architect's Drawings,
Specifications and other doctunents for information and
reference in connection with the Owner's use and occupancy
of the Project. The Architect's Drawings, Specifications or
other documents shall not be used by the Owner or others on
other projects, for additions to this Project, or for completion
of this Project by others unless the Architect is adjudged to be
in default under this Agreement, except by agreement in
writing and with appropriate compensation to the Architect.
6.2 Submission or distribution of documents to meet
official regulatory requirements or for similar purposes in
connection with the Project is not to be construed as
publication in derogation of the Architect's reserved rights.
ARTICLE 7
RESOLUTION OF CLAIMS,
DISPUTES OR OTHER MATTERS
7.1 ARBITRATION
7.1.1 Claims, disputes or other matters in question
between the parties to this Agreement, arising out of or
relating to this Agreement or the breach thereof, shall be
subject to and decided by arbitration in accordance with the
Construction Industry Arbitration Rules of the American
Arbitration Association currently in effect, unless the parties
mutually agree otherwise. Demand for arbitration shall be
filed in writing with the other party to this Agreement and
with the American Arbitration Association. A demand for
arbitration shall be made within a reasonable time after the
claim, dispute or other matter in question has arisen.
7.1.2 No arbitration ari sing out of or relating to this
Agreement shall include, by consolidation, joinder or in any
other inanner, an additional person or entity not a party to
this Agreement, except by written consent containing a
specific reference to this Agreement signed by the Owner,
Architect, and any other person or entity sought to be joined.
Consent to arbitration involving an additional person or entity
shall not constitute consent to arbitration of any claim,
dispute or other matter in question not described in the
written consent or with a person or entity not named or
described therein. This agreement to arbitrate and other
agreements to arbitrate with an additional person or entity
duly consented to by the parties to this Agreement shall be
specifically enforceable in accordance with applicable law in
any court having jurisdiction thereof.
7.1.3 In no event shall the demand for arbitration be made
after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matter in
question would be barred by the applicable statute of
limitations.
7.1.4 The award rendered by the arbitrator or arbitrators
shall be final, and judgment may be entered upon it in
accordance with applicable law in any court !raving
jurisdiction thereof.
7.2 MEDIATION
7.2.1 In addition to and prior to arbitration, the parties
shall endeavor to settle claims, disputes or other matters in
question by mediation in accordance with the Construction
Industry Mediation Rules of the American Arbitration
Association currently in effect, unless the parties mutually
agree otherwise. Demand for mediation shall be filed in
writing with the other party to this Agreement and with the
American Arbitration Association. A demand for mediation
shall be made within a reasonable time after the claim, dis ute
or other matter in question has arisen. fn tic event shall the
V 1994 - TIIE AMERICAN INSTITUTI OF ARCHITECTS, 1735 NEW YdRK AVERUE, W.W., WASHINGTON, . 7=329 1 -
OWNER-ARCHITECT AGREEMENT FOR HOUSING SERVICES - AIA® - WARNING: Unlicensed photocopying violates U.S. cupyrtght laws and will subject
the violator to iegal prosecution. This document was electronically produced with permission of the AIA and can be reproduced In accordance with your
license without violation until the date of expiration as noted below. expiration as noted below. user Document: 0249.doc - 212f2004. AIA License
Number 1016321, which expires on 7/3x2004.
Electronic Format 8181-1994
5
demand for mediation be made after the date when institution
of legal or equitable proceedings based oft such claim, dispute
or other matter in question would be barred by the applicable
statute of limitations.
ARTICLE 8
SUSPENSION, TERMINATION OR
ABANDONMENT
8.1 This Agreement may be terminated by either party
upon not less than seven days' written notice, should the other
party substantially fail to perform in accordance with the
terms of this Agreement through no fault of the party
initiating the termination.
8.2 This Agreement may be terminated by the Owner
upon not less than seven days' written notice to the Architect
in the event that the Project is permanently abandoned. If the
Project is abandoned by the Owner for more than 9o
consecutive days, the Architect may terminate this Agreement
by giving written notice.
8.3 If the Project is suspended by the Owner for more
than 3o consecutive days, the Architect shall be compensated
for services performed prior to notice of such suspension.
When the Project is resumed, the Architect's compensation
shall be equitably adjusted to provide for expenses incurred in
the interruption and resumption of the Architect's services.
8.4 Failure of the Owner to make payments to the
Architect in accordance with this Agreement. shall be
considered substantial nonperformance and cause for
termination.
8.5 If the Owner fails to make payment when due the
Architect for services and expenses, the Architect may, upon
seven days' written notice to the Owner, suspend performance
of services under this Agreement. Unless payment in full is
received by the Architect within seven days of the date of file
notice, the suspension shall take effect without further notice.
In the event of a suspension of services, the Architect shall
have no liability to the owner for delay or damage caused the
Owner because of such suspension of services.
8.6 In the event of termination not the fault of the
Architect, the Architect shall be compensated for services
performed prior to termination, together with Reimbursable
Expenses then due and all Termination. Expenses as defined in
Paragraph 8.7.
8.7 Termination Expenses are in addition to
compensation for Basic and Additional Services, and include
expenses directly attributable to termination for which the
Architect is not otherwise compensated, plus an amount
computed as a percentage of the total compensation for Basic
and Additional Services earned to the time of termination, as
follows:
.1 20 percent if termination occurs during (lie Design
Phase; or
.2 to percent if termination occurs during the
Construction Documents Phase; or
S percent if termination occurs durbig ally
subsequent phase.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 Unless otherwise provided, this Agreement shall be
governed by the law of the place of the Project.
9.2 Terms in this Agreement small have the same
meaning as those in AIA Document A2ot, General Conditions
of the Contract for Construction, current as of the date of this
Agreement.
9.3 Causes of action between the parties to this
Agreement pertaining to acts or failures to act ahaU be deemed
to have accrued and the applicable statutes of limitations shall
commence to run not later than either the date of Substantial
Completion for acts or failures to act occurring prior to
Substantial Completion, or the date of issuance of the final
Certificate for Payment for acts or failures to act occurring
after Substantial Completion.
9.4 "lyre Owner and Architect waive all rights against each
other and against the contractors, consultants, agents and
employees of the other for damages, but only to the extent
covered by property insurance during construction, except
such rights as they may have to the proceeds of such insurance
as set forth in the edition of AIA Document A2w, General
Conditions of the Contract for Construction, current as of the
date of this Agreement. The Owner and Architect each shall
require similar waivers from their contractors, consultants and
agents.
9.5 "17he Owner and Architect, respectively, bind
themselves, their partners, successors, assigns and Legal
representatives to the other party to this Agreement and to the
partners, successors, assigns and legal representatives of such
other party with respect to all covenants of this Agreement.
Neither Owner nor Architect shall assign this Agreement
without the written consent of the other.
9.6 This Agreement represents the entire and integrated
agreement between the Owner and Architect and supersedes
all prior negotiations, representations or agreements, either
written or oral. This Agreement may be amended only by
written instrument signed by both Owner and Architect.
9.7 Nothing contained in this Agreement shall create a
contractual relationship with or a cause of action in favor of a
third party against either the Owner or Architect.
9.8 Unless otherwise provided in this Agreement, the
Architect and Architect's consultants shall have no
responsibility for the discovery, presence, handling, removal or
disposal of or exposure of persons to hazardous materials in
0 1994 - THE AMERI1!XN INSTITUTE Z5F ARCHITECTS, 1735 NEW ORK AVENUE, •, WASHINGTON, D.C. 20D06-5292.
OWNER-ARCHITECT AGREEMENT FOR HOUSING SERVICES - AIAra - WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject
the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced In accordance with your
license without violation until the date of expiration as noted below. expiration as noted below. User Document: 0249.doc -- 2/2/2004. AIA License
Number 101632f, which expires on 7/3GV2o04.
Electronic Format 8181-1994
6
any form at the Project site, including but not limited to
asbestos, asbestos products, polychlorinated biphenyl (PCB)
or other toxic substances.
9.9 The Architect shall have the right to include
representations of the design of the Project, including
photographs of the exterior and interior, among the Architect's
promotional and professional materials. The Architect's
materials shall not include the Owner's confidential or
proprietary information if the Owner has previously advised
the Architect in writing of the specific information considered
by the Owner to be confidential or proprietary. The Owner
shall provide professional credit for the Architect on the
construction sign and in the promotional materials for the
Project.
ARTICLE 10
PAYMENTS TO THE ARCHITECT
10.1 PAYMENTS ON ACCOUNT OF BASIC
SERVICES
10.1.1 An initial payment set forth in Paragraph n.t is the
minimum payment under this Agreement.
10.1.2 Subsequent payments -For Basic Services shall he
trade monthly and, where applicable, shall be in proportion to
services performed within each phase of service on the basis
set forth in Subparagraph 11.2.2.
7A t , rr _-A - • -4-4 •6..4 ?? ?:.?.s ;„:?:.l1...._? .1.1:_1-..1
e.d-Al d al...... `t. c-..u ..rit a s.,.-I,U-6
%JLB z.l: 0
p?ef?erdage of
10.1.4 When corn s to ks?_C_d_,
Construction Cost, and any portions of the Project are deleted
or otherwise not constructed, to the extent services are
performed on those portions, compensation for those portions
of the Project shall be payable in accordance with the schedule
set forth in Subparagraph 11.2.2, based on (1) the lowest bona
fide bid or negotiated proposal; or (2) if no such bid or
proposal is received, the most recent preliminary estimate of
Construction Cost or other cost estimate as described in
Subparagraph 4.7 for such portions of the Project.
\.2REIMBURSABLE EXPENSES
imbursable Expenses are in addition o
on for Basic and Additional Services and e
nditures made by the Architect in the int st of
for.
1 irat torlation and living expenses infonnectic
with tt-of-town travel as authorized by le Owner,
2 long-dis ce communications;
3 fees paid fo securing approvals authorities having
jurisdiction o r the Project;
4 expense of rr
Drawings and
5 expense of re
requested by the
6 if authorized u7
overtime work
and J
ions, stage and handling of
atio and other documents;
models and mock-ups
the Owner, expense of
her than regular rates;
7 expense o any additional in nce coverage or
limits, it uding professional bility insurance,
request by the Owner in excess that normally
carrie by the Architect and a Architect's
cons ants.
10.3 PfYMENTS ON ACCOUNT OF ADDIIVAL
RVICES
10.3 Payments on account of the Architect's Adds nal
Ee and for Reimbursable Expenses shall be e
upon prese ntation of the A.rchitect's statement endered or expenses incurred.
10.4 PAYMENTS WITHHELD
10.4.1 No deductions shall be from the Ar? 't? t?
compensation on account of penalty, liquidated d g or
other sums withheld from payments to contractors, or on
account of the cost of changes in the work other than those for
which the Architect has been found to be liable.
ARTICLE 11
BASIS OF COMPENSATION
The Owner shall compensate the'.Archilect as follows:
11.1 AN INITIAL PAYMENT' of Z= Dollars (s Q ) sliall be made upon execution of this Agreement and credited to the
Owner's account at final payment.
11.2 BASIC COMPENSATION,
-0 1994 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK WASHINGTON, OWNER-ARCHITECT AGREEMENT FOR HOUSING SERVICES - AIAS - WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject
the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your
license without violation until the date of expiration as noted below. expiration as noted below. User Document: 0249.doc -- 2!2/2004. AM License
Number 1016321, which expires on 7tM004.
Electronic Format 8181-1994
7
11.2.1 k )II IIASI( • ',I.It\ WIES, as dcm ri wd in AIIiric• 2 and tut)' (oile'r Services IMItitled in AtIi.dc 12 aS I); I-I of 1l,tsic: Sert•ires, 11.16C
I olrtpensation shall Ito ( timpttled a< iirll(,?vti:
illerr• lncrrl /+:)tic r,(rvmjt•n+:dioff. im htdi•rr: +611t,b1c I •r, m, midlildr+ r1r' jr•n-riffioges, 'ind irlrrllili j+/bru.t to (rhi(•h jUrfre'uLrr ttr(•fhods o(comlrntrrtion apj+h: 0
Fixed_ Fee.. 4251, 0:37.00)
11.2.2 !There a ompensalion is has, d (tit a slipiil,tictI stmt or percentage of ( :tmsirm Ii(m ( cost, progress payments for Basic Services
ill each p}rase.511,1111 ohll Ih<: fooDowitt); I- n rnlagrs of iItc• total Bnsic (:onrlwilsatit,rr payable:
rJdcrtYtrlililfi,tl:,/p/1A?r.?.+c ,1 >J+1trJ•n:Nr•.)
( °!,)
I )rsigt? t'hctsc :_. _ $.12,15 f .£ FJYe percent
I,oflslrttrlioll I')octin?ettts I'I?a•cr : $1501022.20 QjXty percent ( e_Q %)
Biddir?g ol. M,goliatiot? I'hasc $.37,055.')5 Lfle'en percent ( 15 %)
t:wtslrrlcti(,ir I'hasc:_ $50,207.40 TIK.8* percent ( 20 %)
iota Basu: (:c?tnpensal ism: ,. ...... (1.37.0 one lints red percent (too /u
r
C
rr
II. COMPENSATION FOR ADDITIONAL SERVICES 0
11.3.1 I' 1'11011'1."t' R1'11III'Si'N'I'A'I'I0N i;i;l'l>NI) BASIC; SUIRNII(A"S, as described in I'angraplt 3.2, contpens it shall be ti
compuled as ows: N
llnsr rr ltasis oh am/. :Minn. in, •krdirt;+ .uil+rrl. vrd c1„trs. nt rdlij •h -n rr1t. jr, r•.s. )
Dme-U nemi Le-_ xR!@CI s,
11.3.2 FOR ADDI-I'1( 1. SERVI(1:5 (A'I'I If" AR(:! as described ill Articies ; and 12, other an (t) Additional Project
1
Representalion as descril)ec • Paragraph 3.2; and (2) Services included ill Article ?2 as part of Basic Se • es, but excluding services 0o
constillarits, cdmtpe)tsation sit. )e compttled as follows:
(lieart lrrsis o/'cvwgrus16on. Jne?ltulitr?r. furl%nt mul(fl+d:cnCJhiwi /7 norencll rjklrsr (?r)vinii/?rlc,,n,lc•11r/+lujtrs, nt r enti(•l>rinciliah rnd rhoifrempk))i , i/
nsgrrintl. /druJif .a/vr st•n•i(?cs uhly irh) . stdyrmrlh1'thol•cnrnjr•n(;11hIrlal,/)/t: irnovesso r.)
Three times direct-.expefl??_
11.3.3 17011 Ai)DI'1 l(1NA1, SI:RVICI S < "ON.SI lb:l•AN7'S, incittdit)g aeldition;ti s chiral, mechanical and electrical engiueerin
servile, and those provided under 1'aragraplt ;i. identified ill Article i2 as pt?ri o (ditiottal Services, a multiple of One d s;t
( 1A ) times the amotmis hilted to the Art hitect fi licit services.
(I(!i'nN?i' ?lrt•t(ic tr/x•s (+(c,+rrcrrltaf,lc ire ,trti<k• 1?, ,! r,vluiral. !
11.4 REIMBURSABLE EXPENSi:S
11.4.1 FOR Ito:l?fill.lliSAlil,f: l XITNSI:S, as descril,ed in 1'• r 1 11).2, and any olher items included in Article 12 as Reimbursab
Expenses, cr multiple of ?(Q (0) tirmr•s IN- expenses i irred by Archited, the Ari hitect', employees and consullatils Ito the
interest of the I'tnico
11.5 ADDITIONAI. PROVISIONS
I.S.i IF 1111: BASA_ Sfili?'ft:i:5 covere ry this Al;reen?ent have not been comp d within Twenty ( 2Q) inotiths of the dat
hereof, Ihrough no 111111 ol• the Art:hile extritsitm of the Ar•chilco's services heyopid I lime shall be compens?ted as provided it
n.3.
Paragraph
11.5.2 I'nvrnems .rrr Clue an a)•ahle a. 1. tly. ( 3Q ) days from the daie of the Architect's invot Amounts unpaid TWY ( 30
days afl;er the hivoic:e (late ( I hear ir?leresl ill the ialr eniered below, or ill llre absence thereof, at t legal rate prevailing froth tint
to time at the principal ce of business of the Architect.
(lnsrrf r.Nr n(?irtlclt?<t ,??rrtr qr+rr. l
(l /strr? k+us ,>rrn l tin rnrnls life & r thr 1 i rhv:r/ Jill/ h in 1, enrlir>1; . t(1, :% rrnilu st:rot attd k.h:rl , nn.(rrnx r rnJrf Gross an,l r,ther n-guA rlianr at
strc t,! hr ., irk:rl:r(/rtir t„7I 1rners rnd,•In•hile
jJ rsr the /na/in of thr prnkef ;)lid rhru•hov nNM aff-cl rh1aliib*0. r(l/ns I'll r1'icri+lrdrrili( v shoirhl Gcobla rr(rl cY fd drlction.
Zll'orlle ltd ale(, nw-inJirrj; llrlttlnl)rcJlf3 mo 11.-m n'rillen dis, /(+4rn's of 117ri11,M )
tales anti rt?uiliples gel (it)tl) for Addtiional Services shall be ammally adimled in ao-ordance with normal sa revit
Isle Architicl.
ib 1994 - TRE AMERMAN INSTITUTE OF ARCHITECTS, 1715 NEW YORK AVENUE, NX, G O -
OWNER-ARCHITECT AGREEMENT FOR HOUSING SERVICES - AIAS . WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject
the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced In accordance with your
license without violation until the date of expiration as noted below. expiration as noted below. User Document- 0249.doc -- 212n004. AIA License
Number 1016321, which expires on 7/3012004.
Electronic Formal 8181.1994
A
AR HCLF 12
01111-11 ('ONDITIONS OR SERVICES
r/na•lt ticama ,+t olhcr 5vrlity!<. ,-, i,l, hr,h-,/ r+Nhin Rarie• r,}myk-wrafinn an, t lrnv/i/i( Itions to the. /an?nenr and c7?mnensn/ion Irmo
1la 111,1C in tf11s, 1, li-eflie w 1
1. A .0y?pg0.tpf.00% of tile. fee ($200,829.60) shall be fYlade at.irlliial emlorsellletit.
I Ilis Aglecrtmcnl ellierf-d inlo as ol,lhc thy ;1nd rr;tr (ilsl wrillcn abovc.
OWNER
ffW11
ARCHITECT
J
lgnnrrrnl - ?
04?
C T O ARCHITECTS, 35 O AVENUE, N. WASHINGTON,
OWNER-ARCHITECT AGREEMENT FOR HOUSING SERVICES - AIAm - WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject
the violator to legal prosecution. This document was electronically produced with permission of the A?A and can be reproduced in accordance with your
license wlihmit violation until the date of expir4?irn as rioted below. expiration as noted below. User Docummit: 0249.doc -- 2/212004. AIA License
Number 1016321, which expires on 713C'2004.
Elecirrxiic format B181-1994
9
Thomas W. Gauchen.
P.Q. Box 686, Camp VIII PA 17001-0686
' r?t?trul+Ulx IL 111ki1ilAllCi:
Closings
Amendment to AIA Document 8181, Standard Form of Agreement
Between Owner and Architect for Housing Services
The provisions of this Anlendtnent supersede and void X01 inconsistent lirovisions between
(lie Amendment and the AgreenleW .
1. Definition of terms used in this Aineridniew.
it. AgrecAnent. AIA Document 1319 1, Stalulard Forill of Agreement Between Owner and
Architect for 1 lousing Services.
b. (-IUD. The 0. S. Department of l-lousin6 and (Irban DcvUloplileni.
c. Owner. The Mortgagor/Owner.
d. Subcontractor. Any Project subcontractor, imilerials supplier, equiptnent lessor or
industrialized housing ntatiuftacturer/supplier.
2. The Owner and the Architect represent that they are himiliur'with 11(11) requirements,
including the Minimum Property Standards, [,'air [lousing Accessibility Guidelines,
Uniform Federal Accessibility Standards, and architectural requirements of this Guide
(See Chapter 5 __}, as set forth in publications given to then by 1-IUD for this Project
and will perform all services in accordance with tale al)plicable requirements of 111.11).
3. No portion of the Architect's services and reslionsibilit ies or the Owner's responsibilities
shall be assigned, tratlsferred or delegated to anyone riot acceptable to 1 JUD.
4. The Architect shall advise 11[11) as well as the (comer of" oily omissions, substitutions,
defects, grid deficiencies observed in the work ot'tke (.'ontruc;tor.
5. The Architect shall issue Certificates of 11;iyiiiew and Certificates of Substantial
Completion in the form prescribed by 11(11).
6. The Arcbitect shall furnish copies of' all Architect's 5til)plcmcntal histnictions to the
owner, Mortgagee and C I (1!).
7. If the project fir which the drawings and specifications prelimred by the Architect has not
been completed and there is a dettullt or folrcclosure. the Mortgagee car ilt_ll) play use the
drawings and specifications to complete coristrclctio n of !t!e h?oject without additional
cost.
8. The Agreement shall not be terminated without a days prior i<<ritten notice IL) the
Mortgagee and I i 111).
03/16/2002 Section 8.2 -- Page 1 of 3
5
Appeadix '12 Insurance
Closings
9. The Owner and the Architect recognize the interest of the Mortgagee and f-IUD and that
any action or determination by either the Owner or (he Architect is subject to acceptance
or rejection by the Mortgagee and by HUD.
10. The Owner and (lie Architect shall recognize as a valid reason for termination, any
request by HUia liar termination because .of inadequate licrformance, undue delay or
misrepresentation which may make the fitrther services of llte Architect unacceptable to
HUD.
11. 'f'ire Architect adminis(ering tltc C"onstructioll Contract ttttiy not have an identity 01'
interest with the Owtier, Contractor, fund/car amy ProJe:ea stbcontractor. An identity of
interest is construed to exist where:
a. The 4rchitect has any financial interest in the Project other than the fee for
professional service.
b. The architect advances any 11 Inds to the Owner, Cot IIracslill* and/or tiny subcontractor;
and/or the Contractor and/or any subcontractor advtince any Rinds to the Architect.
c. The Architect has any financial interest in the t )wirer, Contractor and/or any
subcontractor; or the Owner, Contractor and/or any subcontractor has any financial
interest in the Architect.
d. Any officer, director, stockholder or partner of flue Architect has any financial interest
in the owner, Contractor and/or any subcontractor; or any officer, director,
stockholder or partner of the Owner, Contractor find/or any subcontractor has any
financial interest in the Architect.
e. Any officer, director, stockholder or patrlner of the ?lrchrlecl is also an officer,
director, stockholder or partner of (Ile Owncr, Contrarclor, anti/err any subcontractor;
or any officer, director, stockholder or partner ol' the; Owner, Contractor and/or
subcontractor is also an officer, director, stockholder, air partner of the Architect.
f. The . ?wner, Conlractor aincl/or any subcontractor, or any officer, director, stockholder
or pr rtner of such Owner, Contractor and/or stibcuntractor provides arty of the
required architectural services; or where the (Avner, Contractor and/or any
subcontractor, or any officer, director, stockholder or partner of such Owner,
Contractor and/or stthcontractor, while; not directly providing nn architectural service,
acts as a consultant to the Architect.
g. Any family relationships between (lie officers, directors, stockholders, or partners of
the Architect and officers, directors, stockholders or partners of the Owner,
Contractor, and/or any subcontractor; or between the officers, directors, stockholders
or partners of the Owner, Contractor, anti/or any subcontractor and officers, directors,
stockholders, or partners of the Architect that could cause or result in control or
influence over prices paid to the Architect and/err pe:r(lwmarnce by the Architect.
03/15/2002 Section 8.2 - Page 2 of 3
• Closings
h. Any side deal, agreement, contract or undertaking, thereby altering, amending, or
canceling any of the required closing documents, except as approved by fIUD.
12. All identities of interest known to exist between the Archilect and the Owner, Contractor
and/or any subcontractor are listed herein. The Architect and owner shall each inform
HUD in writing within 5 working clays of its knowledge of any identity of interest that
develops after execution of this Agreement.
List All Identities of Interest:
Ir'?""?'? ARCI II'I'tIC` CT
J An-t.F4_._._ __...5&tlMCt:;A% t?1J l?
DATE /•, ? l)A'1'I
WARNI : Title 18 U.S.C. 1001, provides in part that Mwever k„e,N-.ingly and willfully makes or
rises a document containing tiny ialse, fictitious, or fratidident slatement or entry, in inty matter in the
jurisdiction of any department or agency of the United States, shall be fined not more than $ 10,000
or imprisoned for not more than S years or loth.
03!15!2002 Section B.2 -- Page 3 of 3
CERTIFICATE OF SERVICE
I hereby certify that I have this 23rd day of April, 2007, served a true and correct copy of
the foregoing document by first class mail, postage prepaid, as follows:
Anthony S. Potter, Esquire
Powell, Trachtman, Logan, Carrle, & Lombardo, P.C.
114 North Second Street
Harrisburg, PA 17101
Victor i e
? 1 r.,
;-F r t?}
"Tl
,l
?
. ?.?
=.i ?
^?
?
„
F?•.3 ?.
.. ...-.?
....ys
??
`??1
??
.
J.r.? ,
dr
Y.?
I
JAMES E. BAUMGARDNER, Architect :IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY
V.
BRAMBLES ARMS ASSOCIATES, L.P. : NO. 07-1509 Civil Term
and
THOMAS W. GAUGHEN,
PETITIONER'S RESPONSE TO RESPONDENTS' OPPOSITION TO PETITION
FOR FINAL AWARD OF THE ARBITRATOR
AND NOW, Petitioner James E. Baumgardner, Architect ("Baumgardner"), by and
through its undersigned counsel Powell, Trachtman, Logan, Carrle & Lobardo, P.C., hereby files
this response to Respondents Brambles Arms Associates, L.P. (`Brambles Arms") and Thomas
W. Gaughen's ("Gaughen') opposition to Baumgardner's petition to confirm the final award of
the arbitrator as follows:
1. The Arbitrator's final award, which was served on the parties on February 8,
2007, enters judgment against both of the following Respondents: 1) Brambles Arms Associates,
L.P.; and 2) Thomas W. Gaughen. The Arbitrator's Final Award states that "Respondents shall
promptly pay to Claimant the sum of THREE HUNDRED EIGHT-FOUR THOUSAND ONE
HUNDRED FIFTEEN AND FORTY-FOUR ONE HUNDREDTHS DOLLARS
($384,115.44) ...."
2. Neither Brambles Arms Associates, L.P. nor Thomas W. Gaughen appealed or
took any action within thirty days to contest the validity of Arbitrator's Final Award. Rather,
Respondents Brambles Arms Associates, L.P. and Thomas W. Gaughen now improperly and
HB:56688vl 4059-03
untimely attempt a collateral attack on the arbitrator's Final Award.
3. In this case, the proceeding below was conducted as a common law arbitration
because the parties' Agreement provided that any disputes arising under the Owner Architect
Agreement were to be submitted to AAA arbitration under the Construction Industry Rules and
any award was to be "final, and judgment may be entered upon it...." See 42 Pa. C.S. § 7342(a);
Runewicz v. Keystone Ins. Co., 476 Pa. 456 383 A.2d 189, 191 (1978)(stating that an arbitration
clause providing for arbitration pursuant to AAA rules and indicating that the parties are bound
by the arbitration decision denotes common law arbitration in Pennsylvania).
4. The award of the arbitrator, therefore, is binding and may not be vacated or
modified unless it is clearly shown that a party was denied a hearing or that fraud, misconduct,
corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable
award. Sage v. Greenspan, 765 A.2d 1139, 1142 (Pa. Super. 2000).
5. Under common law arbitration an arbitrator is "the final judge of both law and
fact, and an arbitration award is not subject to reversal for a mistake of either." F.J. Busse Co. V.
Zipporah, L.P., 879 A.2d 809, 811 (Pa. Super. 2005).
6. A litigant is required to raise any and all alleged errors in the arbitration process or
award in a petition to vacate or modify the arbitration award within 30 days of the date of the
award or the claims are forever waived. See U.S. Claims, Inc. v. Dougherty, 914 A.2d 874 (Pa.
Super. 2006); Sage, 765 A.2d at 1142 (Pa. Super. 2000); See also Caron v. Reliance Ins. Co.,
("[A] ny issue related to the arbitrators' decision ...has been waived due to appellant's failure to
file a timely petition to vacate, as required by 42 Pa. C.S. § 7314."). In this case, Respondents
failed to file a petition to vacate or modify the final award and, therefore, all claims of error are
HB:56688vl 4059-03 2
waived.
7. In this case, the Arbitrator issued a Final Award on February 8, 2007.
Respondents were served with a copy of the award on February 12, 2007.
8. Respondents never filed a petition to modify or vacate the arbitrator's Final
Award with this or any other Court of Common Pleas. By failing to file a petition to modify or
vacate the Arbitrator's Final Award within 30 days, Brambles Arms Associates, L.P. and Thomas
W. Gaughen waived their right to challenge the award. See U.S. Claims, Inc. v. Dougherty, 914
A.2d 874, 877 (Pa. Super. 2006);
9. Petitioner's Petition to Confirm was filed on March 19, 2007. Under the
applicable provision of the Judicial Code this Court has a mandatory statutory duty to confirm
the Arbitrator's award against both Respondents. Section 7342(b) provides, in relevant part, as
follows:
(b) Confirmation and judgment.- On application of a party made
more than 30 days after an award is made by an arbitrator under § 7341
(relating to common law arbitration) the court shall enter an order
confirming the award and shall enter a judgment or decree in conformity
with the order....
42 Pa. C.S. § 7342(b).
10. Significantly, the precise issues now argued by Respondents, Brambles Arms and
Gaughen were addressed during the arbitration process.
11. To this end, Baumgardner filed its original demand for arbitration against both
Respondents, Brambles Arms Associates, L.P. and Thomas W. Gaughen. Baumgardner's
arbitration demand expressly states that his claim was against both Brambles Arms Associates, a
Pennsylvania Limited Partnership and Thomas W. Gaughen, its general partner. (Attached as
HB:56688vl 4059-03 3
Exhibit "A" is a copy of Baumgardner's claim filed with the AAA in the arbitration proceeding).
The claim provides in, relevant part, as follows:
This is a breach of contract claim. Claimant, James E.
Baumgardner ("Baumgardner") is an Architect who entered into a written
agreement with Respondents, Brambles Arms Associates, a Pennsylvania
Limited Partnership (`Brambles Arms") and Thomas W. Gaughen
("Gaughen") its general partner, for the design of an apartment complex in
Hampden Township, Cumberland County. Brambles Arms and Gaughen
terminated the Project because of a purported inability to obtain financing
for the Project from the Department of Housing and Urban Development
("HUD") that was insured by the Federal Housing Administration
("FHA"). Despite the fact that the design documents were approved by
HUD and a Firm Commitment issued to the Owners, Brambles Arms and
Gaughen continue to refuse to pay Baumgardner for the professional
services performed under the Parties' Agreement. Baumgardner demands
payment of the principal amount of $210,871.08 under the contract plus
interest, penalties, attorneys fees, and costs as authorized by
Pennsylvania's Contractor Subcontractor Payment Act, 73 P.S. § 501 et
seq.
12. During the arbitration, Respondents filed several requests seeking dismissal of
Thomas W. Gaughen as a party on several occasions. Baumgardner opposed the requested
dismissal. Gaughen was never dismissed by the Arbitrator. Ultimately, the Final Award was
entered against both Respondents.
13. On November 22, 2005, Baumgardner submitted a letter in response to Thomas
W. Gaughen's request for dismissal from the common law arbitration. In the letter,
Baumgardner argued that Thomas W. Gaughen was an appropriate party under Pennsylvania's
Uniform Limited Partnership Act and existing case law because Thomas W. Gaughen was a
general partner in Brambles Arms Associates, L.P. (Attached as Exhibit "B" and incorporated
herein by reference is a copy Baumgamder's letter to AAA).
14. The Arbitrator's Final Award, which was never timely challenged, on its face
HB:56688vl 4059-03
enters judgment against Respondents.
15. Based upon the arbitration claim, Respondent Gaughen's repeated attempts to
have himself dismissed from the arbitration, and the Final Award the issue was squarely
presented to the arbitrator for decision. Critically, the Arbitrator issued a Final Award against
both Respondents. Even had Respondents filed a timely challenge to the award, which they did
not, the decision could not be reversed on the ground that the Arbitrator committed an error of
law.
16. As set forth by Baumgardner in the arbitration "The Pennsylvania's Uniform
Limited Partnership Act and the case law cited by Baumgardner support naming Gaughen as a
Respondent. The decision in TPS Technologies, Inc. v. Roddin Enterprises. Inc., 816 F.Supp.
345 (E.D. Pa. 1993) clearly stands for the proposition that under Pennsylvania law a general
partner is an appropriate respondent in a breach of contract action where a limited partnership is
alleged to be the breaching party."
17. By failing to file a petition to vacate or modify the arbitration award, Respondents
waived any challenge to the Final Award entered by the Arbitrator against both Respondents. As
such, this Court has a statutory duty to confirm the Arbitrator's award against both Respondent
Brambles Arms Associates, L.P. and Thomas W. Gaughen under 42 Pa. C.S. § 7342(b).
18. Respondents challenge to the arbitrator's final award is frivolous. Gaughen was
named in his capacity as general partner (see Baumgardner's AAA Claim). Respondents
concede that Gaughen was in fact the general partner in Brambles Arms Associates, L.P.
HB:56688vl 4059-03
WHEREFORE, Petitioner, James E. Baumgardner, AIA respectfully requests this
Honorable Court enter an Order confirming the Arbitration Award, and that Judgment in
accordance with the Award of the Arbitrator be entered in favor of Petitioner Baumgardner and
against Respondents, Brambles Arms Associates, L.P. and Thomas W. Gaughen in the amount of
$410,397.28 plus interest of 1% per month pursuant to 73 P.S. §50?(d); plus penalty of 1% per
month pursuant to 73 P.S. §512(a) from March 13, 2007 to the date of payment, plus all costs.
Respectfully submitted,
Date: April 30, 2007
POWELL, TRACHTMAN, LOGAN,
CARRLE & LOMBARDO, P.C.
By-?
Anthony S. P tier
I.D. #7590
114 No Second Street
Harris urg, PA 17101
(717) 238-9300
Attorneys for James E. Baumgarder
HB:56688vl 4059-03 6
American Arbitration Associ -lon
CONSTRUC. -ION INDUSTRY ARBITIx TION RULES
DEMAND FOR ARBITRATION
I MEDIATION If you want the AAA to contact the other party and attempt to arrange a mediation, please check this box Q
TO: Name of Respondent Name of Representative (if known)
3rambl68Amts Axswo tes L :. P : & W
Address Gaug Address
?.0. Box 686
Cit St
ate 1
de City State Zip Code
y Hill p
ta 7001
-0686
Phone No. Fax No. Phone No. Fax No.
(717) 763-9600.. 717 763--4600.
THE NAMED CLAIMANT, A PARTY TO A WRITTEN AGREEMENT DATED -2-204 PROVIDING FOR ARBITRATION
UNDER THE CONSTRUCTION INDUSTRY ARBITRATION RULES, HEREBY DEMANDS ARBITRATION THEREUNDER.
(ATTACH THE ARBITRATION CLAUSE.)
NATURE OF DISPUTE (Please give enough details to enable the AAA to select arbitrators with appropriate experience.):
See Attached
DOLLAR AMOUNT OF CLAIM: OTHER RELIEF SOUGHT:
$ 210,871.08 ** Interest, Penalties and Attorneys. Fees
PLEASE DESCRIBE APPROPRIATE QUALIFICATIONS FOR ARBITRATOR(S) TO BE APPOINTED TO HEAR THIS DISPUTE;
The arbitrator should have samd.understandi.ng of Standard Form AIA Contract
documents, constxuctimi projectp..generally,.and esign professionals specifically.
CLAIMANT IS:
0 Owner b Design Professional (specify t ) ? Contractor
0 Subcontractor (specify 1 0 Other (specify )
RESPONDENT IS:
b Owner 0 Design Professional (specify 1 0 Contractor
0 Subcontractor (specify 1 0 Other (specify 1
I ESTIMATED TIME NEEDED FOR HEARINGS OVERALL: hours 1 days
Copies of this demand are being filed with the American Arbitration Association at its NE. cacti 1Vf %naQ:en t GG%It r ottice.
Claimant requests that the AAA commence the administration of the arbitration. Under the rules, you may file an answering state-
ment within ten days after notice from the AAA.
( CLADggiRE UL E TS THAT ARBITRATION HEARINGS BE HELD AT THE FOLLOWING LOCALE:
sbu g Area
by
Name of Claimant
Jwies E. Baumgardner, A
Addrer4l Broadway, Suite 220
Title Attorney
Name
S. Potter
AddTf4 North Second Street
City Hanover State PA Zip 17331 C1 Harris StatePA 770 lff
Ph' BQ 637 6720
11 Fax No.
(717)
637-9178 Phone No.
(717) 238-9300 Fax No.
(717) 238-9325
TO INSTITUTE PROCEEDINGS, PLEASE SEND TWO COPIES OF THIS DEMAND AND THE ARBITRATION AGREEMENT,
WITH THE FILING FEE, AS PROVIDED FOR IN THE RULES, TO THE AAA. SEND THE ORIGINAL DEMAND TO THE
RESPONDENT.
,xclusive or rerneclies set forth in the Pennsylvania Contractor Subcontractor Form 012.W
Payment Act.
NATURE OF THE DISPUTE
1. Introduction.
This is a breach of contract claim. Claimant, James E. Baumgardner ("Baumgardner") is
an Architect who entered into a written agreement with Respondents, Brambles Arms Associates,
a Pennsylvania Limited Partnership (`Brambles Arms") and Thomas W. Gaughen ("Gaughen")
its general partner, for the design of an apartment complex in Hampden Township, Cumberland
County. Brambles Arms and Gaughen terminated the Project because of a purported inability to
obtain financing for the Project from the Department of Housing and Urban Development
("HUD") that was insured by the Federal Housing Administration ("FHA"). Despite the fact that
the design documents were approved by HUD and a Firm Commitment issued to the Owners,
Brambles Arms and Gaughen continue to refuse to pay Baumgardner for the professional
services performed under the Parties' Agreement. Baumgardner demands payment of the
principal amount of $210,871.08 under the contract plus interest, penalties, attorneys fees, and
costs as authorized by Pennsylvania's Contractor Subcontractor Payment Act, 73 P.S. § 501 et
seq.
II. Factual Background.
Brambles Arms and Gaughen (herein collectively "Developers") sought to construct a
four story building consisting of 206 apartment units on a parcel of property located in Hampden
Township ("Project"). The Developer sought funding for the Project through a HUD-FHA
221(d) 4 program.
The Parties entered into an AIA Standard Form of Agreement Between Owner and
Architect for Housing Services B181 (1994 Edition) which contained a Standard HUD
Amendment. Under the terms of the AIA B181 Baumgardner's scope of work included
provision of "all professional design related services including architectural, engineering for
mechanical, electrical, civil, landscaping and interior design and construction supervision
services."
To obtain the HUD-FHA financing, Brambles Arms and Gaughen engaged Prudential
Huntoon Paige ("Prudential") to review Project documentation and ultimately underwrite the
Project. As a condition precedent to approving the Project, Prudential retained the services of an
independent review Architect (Stewart Markowitz, AIA). Preliminary and final sets of design
drawings, specifications and plans and all HUD forms, including the contracts between the
Parties, were reviewed and approved by Prudential and Markowitz for conformity with HUD's
regulations.
The Developers and Baumgardner originally executed an AIA. B181 on or about October
15, 2005. The execution of the initial AIA B 181 immediately proceeded submission of final
HB:54383vl 4059-03
drawings, plans and specifications to Prudential for final review before all documents would be
submitted to HUD. The initial AIA B 181 Agreement executed by the Parties incorporated an
outdated Department of Housing and Urban Development (HUD) Amendment. In fact, the
initial AIA B 181 executed in October 2003 incorporated HUD's December 1995 Standard
Amendment to AIA Document B 181. On or about October 29, 2003, Gaughen sent this fully
executed AIA B 181 with the outdated HUD Standard Amendment to Prudential for underwriting
review.
On or about November 17, 2003, final submission of the architectural and engineering
drawings, plans and specifications were made to Prudential and Markowitz for review and
approval before submission to HUD. Prudential, by and through its reviewing Architect
(Markowitz), made comments and suggestions for revisions to the final drawings, plans and
specifications.
On December 12, 2003, Baumgardner submitted the final drawings and plans to the
Pennsylvania Department of Labor and Industry for approval. L&I approved the drawings for
construction conditioned upon the Industrial Board granting a variance from certain regulations.
The Industrial Board granted the variance in February 2004.
The final drawings and plans were also submitted to Hampden Township for plan review
to obtain a building permit. On or about December 15, 2003, Hampden Township issued final
approval of the architectural and engineering drawings and stated that a building permit was
being processed.
On or about January 1, 2004, Prudential submitted the revised final construction
drawings, plans, specifications and contract documents to HUD's Philadelphia Office to obtain
HUD's Firm Committment for financing. On or about January 28, 2004, Gaughen received three
comments related to the final submission. These comments were as follows: 1) the AIA B181
required revisions to satisfy current HUD requirements; 2) Surveryor's Plat and Surveyor's
Report and Plat were required to reflect the same date; and 3) accessibility adjustments to the
bathroom entrance and shower faucets were required.
As a result of HUD's- comments, a new AIA B 181 incorporating, among other things, the
most recent edition of the HUD Standard Amendment to the ALA B 181 (3/15/2002 Edition) was
executed by Brambles Arms, Gaughen and Baumgardner. The new AIA B 181 was executed by
all Parties on February 2, 2004. Under its express terms the February 2, 2004 AIA B 181
represents the entire integrated agreement of the Parties and supersedes all prior agreements.
B 18119.6. (A true and correct copy of the Final B 181 along with the Standard HUD
Amendment is attached hereto as Exhibit "A" and incorporated herein by reference).
On May 12, 2004, Gaughen sent a letter to Baumgardner stating that HUD issued a Firm
Committment for financing the Project. On May 13, 2004, Baumgardner sent an invoice to
Brambles Arms and Gaughen for 80% of the contract amount or $200,829.60, which amount
HB:54383vl 4059-03 2
represented the fees due for completing 100% of the design phase. (A true and correct copy of
the May 13, 2004 Invoice is attached hereto as Exhibit "B" and is hereby incorporated by
reference.)
On May 19, 2004, HUD issued its official written Firm Commitment to Insure the
Project. (A true and correct copy of the Firm Commitment is attached as Exhibit "C" and is
hereby incorporated by reference). HUD's Firm Commitment was conditioned upon, among
other things, Gaughen and Brambles Arms subdividing the parcel of land where the Project was
to be sited. See Exhibit "C" No. 14. Gaughen and Brambles Arms initially sought an exemption
from the HUD requirement that the land be subdivided the property and advocated use of a land-
lease financing structure. Ultimately, however, Gaughen and Brambles Arms agreed to
subdivide the property.
On or about May 26, 2004, the Owner received revised pricing from its general
contractor. On May 27, 2004, Gaughen sent a fax to all project participants stating that he would
terminate the Project due to the construction cost increase.
During June 2004, Gaughen and Brambles Arms used Baumgardner's drawings, plans,
and specifications to solicit bids from other general contractors for the Project. In furtherance of
constructing the Project, Gaughen and Brambles Arms, by and through one of Baumgardner's
engineering sub-consultants (Brinjac Engineering), subdivided the parcel of land in late June or
early July 2004.
Upon information and belief, none of the bids from general contractors solicited by
Gaughen and Brambles Arms produced a bid that matched the lump sum price provided by the
original general contractor during the Fall of 2003. On July 10, 2004, Gaughen sent a letter to
several project participants including Baumgardner complaining bitterly about delays caused by
Prudential and HUD and indicating that the Project was terminated as a result of Prudential's
delays that resulted in increased construction costs.
On July 22, 2004, Baumgardner sent a letter to Gaughen and Brambles Arms demanding
payment in the amount of $210,871.08. This demand was based upon the professional fees owed
for services completed ($200,829.60) plus a five percent termination expense ($10,041.48) as
specified in the Parties' AIA B181 Agreement. See Exhibit "A," AIA B181 ¶¶ 8.6, 8.7. (A true
and correct copy of the July 22, 2004 letter is attached hereto as Exhibit "D" and is hereby
incorporated by reference). To date, Gaughen and Brambles Arms have failed and refused to pay
any monies owed under the Agreement.
III. Legal Analysis.
Article 8 of the Parties' AIA B 181 expressly required Gaughen and Brambles Arms to
pay for any and all professional services in the event of a termination and also provided for
termination expenses stating as follows:
HB:54383v1 4059-03
8.6 In the event of termination not the fault of the Architect, the
Architect shall be compensated for services performed prior
to termination together with ... all Termination Expenses as
defined in Paragraph 8.7.
At the time of Gaughen's termination, the design phase of the Project was complete and
eighty percent of the contract amount was due and owing to Baumgardner (i.e. $200,829.60).
See Exhibit "A," AIA B 181111.2.2. Paragraph 8.3 of the AIA B 181 Agreement requires the
Developers to pay five (5) percent as of that amount as a termination expense. AIA B181 ¶ 8.7.3.
As such, the principal amount due and owing to Baumgardner under the AIA B181, exclusive of
interest, penalties, and attorneys fees is $210,871.08.
Gaughen and Brambles Arms's refusal to pay Baumgardner for any of the architectural or
engineering services rendered on the Project violates Pennsylvania's Contractor Subcontractor
Payment Act ("Act"). 73 P.S. §§ 501-516. Based upon Gaughen and Brambles Arms' refusal to
comply with the Act, Baumgardner is entitled to interest, penalties, and attorneys fees under the
Act, 73 P.S. § 512.
Baumgardner operates a registered architectural firm that provided professional design
services on the Project. These services clearly qualify Baumgardner for protection under the Act
as a contractor. To this end, the Act broadly defines "contractor" as "[a] person authorized or
engaged by an owner to improve real property" and, in turn defines "improve" as "to design,
effect, alter, provide professional or skilled services ... upon improvements." 73 P.S. § 502.
Under the Act the award of interest, penalties and attorneys fees are mandatory where, as
here, the other provisions of the Act are satisfied. With respect to the award of a penalty, the Act
provides, in pertinent part:
If arbitration or litigation is commenced to recover payment due
under this act and it is determined that an owner ... has failed to
comply with the payment terms of this act, the arbitrator or court
shall award, in addition to other damages due, a penalty equal to
1% per month of the amount that was wrongfully withheld.
73 P.S. § 512(a)(emphasis added).
The Act also makes the award of attorneys' fees mandatory:
Notwithstanding any agreement to the contrary, the substantially
prevailing party in any proceeding to recover any payment under
this act shall be awarded a reasonable attorney fee in .any amount
to be determined by the court or arbitrator, together with expenses.
HB:54383v1 4059-03 4
73 P.S. § 512(b). Finally, the Act provides that Baumgardner is entitled to interest at a rate of
I% per month as follows:
(d) Interest. - Except as otherwise agreed by the parties, if any
progress or final payment to a contractor is not paid within seven
days of the due date established in subsection (c), the owner shall
pay the contractor, beginning on the eighth day, interest at a rate
of I% per month or fraction of a month on the balance that is at the
time due and owing.
73 P.S. § 505(d). Accordingly, Baumgardner is entitled to an award of interest, penalties and
attorneys fees under the Act.
IV. Statement of Current Accrued Damages
Contract Balance $200,829.60
Termination Expenses $10,041.48
$210,871.08 (Principal Contract Amount Due)
Interest $33,379.36 (1% x 16 months). 73 P.S. §505(d) 4, 1ae?.71 ??M6r
(continue to accrue).
Penalty $33,379.36 (1% x 16 months). 73 P.S. §512(a)
(continue to accrue).
Attorneys Fees (Not yet liquidated, 73 P.S.§512(b))
Total Current Claim: $277,629.80 (Interest, Penalties and Attorneys Fees
continue to Accrue).
HB:54383vl 4059-03 5
.IT-IR 4(1T alt 7181 - ; e'c-frollic olnlat
Standard ForrT) of Agreement Between
Owner and Architect for Housing Services
11115 ?hc)CM11:N1 HAS INIPORTAM' i.li1;,V. I.0NS11111I NCI:S; CONStIUMI'l(M W11-11 AN ATl-ORNEY 15 ENCOURAGED wrrit RESPECT' 1'0 iTS
c.0A11'1.1110K OR fhllrlfit:a"Ill)".. Al flllrf?lll:,1'Ilrrh` rll' 1111-S CLECA'RONICAI.I.Y DRAI711:I) AIA 1)0CUMFN'1' MAY BE MADE By 1151N(; AIA
t roc a IA I CN i" I s.pn.
C:)p'righl 1978, ? wx)l h1• 'I he Aurericau Insli(Wl- of Arr hilcos, I-is New York Avenue, N.W., ?l achingtun D.C, 211006-9292. ReprcAuclion of the material herein or
ctdxl; illi: l gn+datinn of ils Imrrisions cvilhnm pormiscion of Ihr .VA violAci the Copyright lags M Ilhe i Inhol titans mint will sublecl the violator to legal proseculion.
1994 Edition
AGREEMENT
made as of file t?tlf! day of Fe rtlaly. in the I f ar u( 2QQ_
(Ar nm/,c. indnxk•d.•n; orr+nth and )-c-arl
BETWEEN the Owner:
(Xvnc and acklrrss)
Brambles Arms Assoc.. _a pennmlvarlia.Limlteci.Partnershlt-bY.its.Gelieral.Paitngr,.?homas W. Gaug en.
P.O. Box 686
SeaR1p Hill. PA 17002_0686
and the Architect:
fXmic and a+k/rrssl
James E. Baumgardner-AHCHITEGi-
i4lBroadway. Suff-e220
Hanover. 17331
For the following Project:
t Ini'krtk dclaik4f Jc:r.:rilui+?n n/'/ht+J tY k?? ?+(f+++r, .+, (, frr.<s serf s.-n/h•. I
Bramblleg Arms A01tnrent4J-oLf3rarpble?A-rms.Assclc.
Mechanicsburo. PA M-50
A?QSd[_ ?i:l? Ldllly.coils!_sllrl9 af.;?0li.urtjts an¢.jnclucles. r?vo el?vators,._an_aalainafig-s tink_ier system. and an automatic
alamlaystem..
The ggQo of work i c u es rov sipas f ro all profassianal design-related se es including architectural. ( ginerlerla for
mechanical?a!l tl3 1. iLa1 L_la?7ds_ i?lL? tldlliter?ot? 1911??11??Rs llo uperyirJon..
The Owner and the Architect agree as set forth below.
'FIRMS AND CONDITIONS OF TI Ii' MAZI I;MENT
11FTW[A"N OWNER AND ARCI IITI:CI'
ARTICLE 1
ARCHITECT'S RESPONS111111.I11ES
1.1 ARCHITECT'S SERVICES
1.1.1 The Architect's services consi-t of tho-w "Aviles
perforated by the /Architect, Archileca's employ-evs and
Archilect's consultants as enumerated in Articles z and •l of
this Agreement amd anl• other services iacludecl in Arliclc- 12.
1.1.2 'I'hc Architect's services shall be performed as
expediliously as is consistent with professional skill and care
and the orderly progress of the Work. Upon request of the
Owner, the Archilect',shall submit for the Owners approval a
schedule for the perfonnance of lite Architect's services that
mars bc• adjusted as (he Project proceeds, and that shall include
allow.nrces fur pericxls of time required for the Owner's review
and for approval of submissions by authorities having
imisdic(iorr over the Project. '1'irne limits established by this
schedue approved li}• thr Owner shall not, except for
reasonable cruse, be exceede :I by the Architect or Owner.
R C ITIM-71"TUTEE-1 5 1 C -I r CT , 1735 EJEW YORK V S G O D.C.
OWNER-ARCHITECT AGREEMENT FOR HOUSING SERVICES - AIA40 - WARNING: Unlicensed photocopying',violates U.S. copyright laws and will subject
the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your
license without violation until the date of expiration as noted below. expiration as noted below. User Documrnt: 0249.doc -- 2/2/2004. AIA License
Number 1016321, which expires on 7/30/2004.
7?ml Electronic Format 8181-1994
1
bids or negoliaten proposals and assist in awarding contracts
J ? g aI? for construction.
ARTICLE 1 2.5 CONSTRUCTION PHASE ADMIN15TRATION
SCOPE OF ARCHITECT'S BASIC SERVICES OF OF THE CONSTRUCTION CONTRACT
2.1 DEFINITION
2.1.1 The Architect's Basic Services consist of those
described in Paragraphs 2.2 through 2.6 and any other services
identified in Article 12 as part of Basic Services, and include
normal civil, structural, mechanical' and electrical engineering
services.
2.2 DESIGN PHASE
2.2.1 The Architect shall review the program furnished by
the Owner to ascertain the requirements of the Project and
shall arrive at a mutual understanding of such requirements
with the Owner.
2.2.2 The Architect shall provide a preliminary evaluation
of the Owners program, schedule and construction budget
requirements, each in terms of the other, subject to the
limitations set forth in Subparagraph 5.2.2.
2.2.3 The Architect shall review with the Owner alternative
approaches to design and construction of the Project.
2.2.4 Based on the mutually agreed-upon program,
schedule and construction budget requirements, the Architect
shall prepare, for approval by the Owner, Design Documents
consisting of drawings and other documents appropriate for
the Project.
2.3 CONSTRUCTION DOCUMENTS PHASE
2.3.1 Based on the approved Design Documents and any
further adjustments in the scope or quality of the Project or in
the construction budget authorized by the Owner, the
Anchitect shall prepare, for approval by the Owner,
Construction Documents consisting of Drawings and
Specifications setting forth in detail the requirements for
construction of the Project.
2.3.2 The Architect shall assist the Owner in the
preparation of the necessary bidding information, bidding
forms, the Conditions of the Contract, and the form of
Agreement between the Owner and Contractor.
2.3.3 The Architect shall assist the Owner in connection
with the Owner's responsibility for filing documents required
for the approval 'of governmental authorities having
jurisdiction over the Project.
2.4 BIDDING OR NEGOTIATION PHASE
2.4.1 Following the Owner's approval of the Construction
Documents, the Architect shall assist the Owner in obtaining
2.5.1 The Architect's responsibility to provide Basic
Services for the Construction Phase under this Agreement
commences with the award of the Contract for Construction
and terminates at the earlier of the issuance to lthe Owner of
the final Certificate for Payment or 6o days after the date of
Substantial Completion of the Work.
2.5.2 The Architect shall provide administration of the
Contract for Construction as set forth below and in the
edition of AIA Document;A2ol, General Conditions of the
Contract for Construction, current as of the dale of this.
Agreement, unless otherwise provided in this Agreement.
2.5.3 Duties, responsibilities and limitations of authority of
the Architect shad not be restricted, modified or extended
without written agreement of the Owner and the Architect,
with the consent of the Contractor; which consent shall not
be unreasonably withheld.
2.5.4 The Architect shall be a representative of and shall
advise and consult with the Owner (t) during construction
until final payment to the Contractor is due; and (2) as an
Additional Service at the Owners direction from time to time
during the correction period described in the Contract for
Construction. 11he Architect shall have authority to act on
behalf of the Owner only to the extent provided in this
Agreement unless otherwise modified by written instrument.
Instructions to the Contractor shall be forwarded through the
Architect.
2.5.5 11he Architect shall visit the site at intervals
appropriate to the stage of construction (or as otherwise
agreed by the Architect in writing) to become generally
familiar with the progress and quality of the Work and to
determine in general if the Work when completed will be in
accordance with the Contract Documents. However, the
Architect shall not be required to make exhaustive or
continuous on-sile inspeWons to check the quality or
quanlily of the Work. On the basis of on-site observations as
an architect, the Architect shall keep the Owner informed of
the progress and quality of the Work, and shall endeavor to
guard the Owner against defects and deficiencies in the Work.
(Afore exterlsii a site representation may he agreed to as an
Additional Service, as described in Amgmph 3.2)
2.5.6 The Architect shall not have control over, charge of,
or responsibility for construction means, methods,
techniques, sequences or procedures, or for safety precautions
and programs in connection with the Work, since these are
solely the Contractor's responsibility under the Contract for
Construction. The Architect shall not be responsible for the
Contractor's schedules or failure to carry out the Work in
accordance with the Contract Documents. The Architect
shall not have control over or charge of acts or omissions of
0 1994 - E AMERICAN ARCHITECTS, 5 E OR AVENUE, 5 INGT .C.20006--5292. O
OWNER-ARCHITECT AGREEMENT FOR HOUSING SERVICES - AIA® - WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject
the violator to legal prosecution. This doc6ment was electronically produced with permission of the AIA and can be reproduced in accordance with your
license without violation until the date of expiration as noted below. expiration as noted below. User Document: 0249.doc - 212/2004. AIA License
Number 1016321, which expires on 7/30/2004.
Electronic Format B181-1994
2
the Contractor, Subcontractors, or their- ants or employees,
or any other,persons performing any of the Work.
2.5.7 The Architect shall at all times have access to the
Work, wherever it is in preparation;or progress.
2.5.8 Based on the Architect's observations and evaluations
of the Contractor's Applications for Payment, the Architect
shall review and certify the amounts due the Contractor.
2.5.9 The Architect's certification for payment shall
constitute a representation to the Owner that the Work has
p ressed to the point indicated, and that to the best of the
Architect's knowledge, information and belief, the quality of
the Work is in accordance with the Contract Documents.
Such certification shall be based on the Architect's
observations at the site as provided in Subparagraph 2.5.5 and
on the data comprising the Contractors Application for
Payment. The foregoing representations are subject to an
evaluation of the Work for conformance to the Contract
Documents upon Substantial Completion, to results of
subsequent tests and inspections, to minor deviations from
the Contract Documents correctable prior to completion and
to any specific qualifications expressed by the Architect. The
issuance of a Certificate for Payment shall further constitute a
representation that the Contractor is entitled to payment in
the amount certified. However, the issuance of a Certificate
for Payment shall not be a representation that the Architect
has (i) made exhaustive or continuous on-site inspections to
check the quality or quantity of the Work; (2) reviewed
construction means, methods, techniques, sequences or
procedures; (3) reviewed copies of requisitions received from
Subcontractors and material suppliers and other data
requested by the Owner to substantiate the Contractor's right
to payment; or (4) ascertained how or for what purpose the
Contractor has used money paid on account of the Contract
Sum.
2.5.10 The Architect shall have authority to reject Work that
does not conform to the Contract Documents. Whenever the
Architect considers it necessary or advisable for
implementation of the intent of the Contract Documents, the
Architect will have authority to require additional inspection
or testing of the Work in accordance with the provisions of the
Contract Documents, whether or not such Work is fabricated,
installed or completed. However, neither this authority of the
Architect nor a decision made in good faith either to exercise
or not to exercise such authority shall give rise to a duty or
responsibility of the Architect to the Contractor,
Subcontractors, material and equipment suppliers, their agents
or employees, or other personss,performing portions of the
Work.
2.5.11 The Architect shall review and approve or take other
appropriate action upon the Contractor's submittals such as
Shop Drawings, Product Data and Samples, but only for the
limited purpose of checking for conformance with
information given and the design concept expressed in the
Contract Documents. The Architect's actions shall be taken
with reasonable promptness so as to cause no delay in the
Work or in the .struction of the Owner or of separate
contractors, while allowing sufficient time (in .the Architect's
professional judgment) to permit adequate review. The
Architect's approval of a specific item shall not indicate
approval of an assembly of which that item is a component.
2.5.12 1'he Architect shall prepare Change Orders for the
Owner's approval and execution, and shall have authority to
order minor changes in theWork not involving an adjustment
in the Contract Sum or an extension of the Contract Time.
2.5.13 'I'l?e Architect shall conduct inspections to determine
the dale of Substantial Completion and the data of final
completion, and shall issue a final Certificate for Payment.
2.5.14 The Architect shall interpret and decide matters
concerning performance of the Owner and Contractor under
the requirements of the Contract Documents on written
request of either the Owner or Contractor. The Architect's
response to such requests shall be made with reasonable
promptness and within any time limits agreed upon.
2.5.15 Interpretations and decisions of the Architect shall be
consistent with the intent of and reasonably inferable from the
Contract Documents and shall be in writing or in the form of
drawings. When making such interpretations and initial
decisions, the Architect shall endeavor to secure faithful
performance by both Owner and Contractor, shall not show
partiality to either, and shall not be liable for results of
interpretations or decisions rendered in good faith in such
capacity.
ARTICLE 3
ADDITIONAL SERVICES
3.1 Additional Services shall be provided if authorized or
confirmed in writing by the Owner or if included in Article ro,
and shall be paid for by the Owner as provided in this
Agreement.
3:2 If the Owner and the Architect agree that more
extensive representation at the site than is described in
Subparagraph 2.5.5 shall be provided, such additional project
representation shall be provided and paid for as set forth in
Article 12.
ARTICLE 4
THE OWNER'S RESPONSIBILITIES
4.1 The Owner shall provide full information, including
a program setting forth the Owner's design ob'ectives,
constraints and criteria. The Owner shall establish an? update
an overall budget for the Project, including the Constntction
Cost, the Owner's other costs and reasonable contingencies
related to all of these costs. If requested by the Architect, the
owner shall furnish evidence that financial arrangements have
been made to hilfill the Owner's obligations under this
Agreement.
4.2 The Owner shall designate a representative
OWNER-ARCHITECT AGREEMENT FOR HOUSING SERVICES - AIAO - WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject
the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your
license without violation until the date of expiration as noted below. expiration as noted below. User 'Document: 0249.doc - 2/2!2004. AIA License
Number 1016321, which expires on 7/3012004.
Electronic Format 6181-1994
2
authorized. to act on the Owner's beha ith respect to the
Project. The Owner or such authorized representative shall
render decisions pertaining to documents submitted by the
Architect in a timely manner, so as to avoid unreasonable
delay in the orderly and sequential progress of the Architect's
services.
4.3 The Owner shall furnish a legal description and a
certified land survey of the site, and the services of
geotechnical engineers or other consultants when such services
are deemed necessary by the Architect. Such services may
include but are not limited to topographic surveys, test
borings, test pits, determinations of soil bearing values,
percolation tests, evaluations of hazardous materials, ground
corrosion and resistivity tests, including necessary operations
for anticipating subsoil conditions. The services of
geotechnical en 'neer(s) or other consultants shall include
preparation and submission of all appropriate reports and
professional recommendations.
4.4 The Owner shall furnish structural, mechanical,
chemical, air and water pollution tests, tests for hazardous
materials, and other laboratory and environmental tests,
inspections and reports as required. by law or the Contract
Documents.
4.5 The Owner shall furnish all legal, accounting and
insurance counseling services as may be necessary at any time
for the Project, including auditing services the Owner may
require to verify the Contractor's Applications for Payment or
to ascertain how or for what purposes the Contractor has used
the money paid by or on behal.'r of the Owner. The Owner
shall furnish the services of other consultants when such
services are reasonably required by the scope of the Project
and are requested by the Architect.
4.6 The Owner, unless otherwise provided in Article 12,
shall furnish all legal, accounting, planning, estimating and
other services and expenses required to prepare, present and
process any application for governmental or private financing,
mortgage insurance or subsidy.
trw J 1r E3 >r? t? Y ?C`
4.8 The services, informatio? , surveys and t po s I
required by Paragraphs 4.3 through 4.7, inclusive, shall be
furnished at the Owner's expense, ahd the Architect shall be
entitled to rely upon the accuracy and completeness thereof.
4.9 Prompt written notice shall be given by the Owner to
the Architect if the Owner becomes aware of any fault or
defect in the Project or nonconformance with the Contract
Documents.
4.10 The proposed language cf certificates or certifications
requested of the Architect or Architect's consultants shall be
submitted to the ; aitect for review and approval at least ?4
days prior to execution. ` The Owner shall not request
certifications that would require knowledge or services beyond
the scope of this Agreement.
ARTICLE 5
CONSTRUCTION COST
5.1 DEFINITION
5.1.1 The Construction Cost shall be the total cost or
estimated cost to the Owner of all elements of the Project
designed or specified by the Architect.
5.1.2 The Constntclion Cost shall include the cost at
current market rates of labor and materials furnished by the
Owner and any equipment which has been designed,
specified, selected or specially provided for IT the Architect,
plus a reasonable allowance for the Contractors overhead and
profit. In addition, a reasonable allowance for contingencies
shall be included for market conditions at the time of bidding
and for changes in the Work during construction.
5.1.3 Construction Cost does not include the
compensation of the Architect and the Architect's consultants,
the cost of the land, rights-of-way, financing or other costs
that are the responsibility of the Owner as provided in Article
4-
5.2 RESPONSIBILITY FOR CONSTRUCTION
COST
5.2.1 It is recognized that neither the Architect nor the
Owner has control over the cost of labor, materials or
equipment, over the Contractor's methods of determining bid
prices, or over competitive bidding, market or negotiating
conditions. Accordingly, the Architect can not and does not
warrant or represent that bids or negotiated prices will not vary
from the Owner's Project budget or from any preliminary
estimate of Construction Cost or other cost estimate or
evaluation. Any Project budget shall be adjusted to reflect
changes in the general level of prices in the construction
industry between the dale of submission of the Construction
Documents to the Owner and the date on which bids or
negotiated proposals are sought.
5.2.2 No fixed limit of Construction Cost shall be
established as a condition of this Agreement by the furnishing,
proposal or establishment of a Project budget, unless such
fixed limit has been agreed upon in writing and signed by the
parties hereto. If such a fixed limit has been established, the
Architect shall be permitted to include contingencies for
design, bidding and price escalation; to determine what
materials, equipment, component systems and types of
construction are to be included in the Contract Documents; to
make reasonable adjustments in the scoppee of the Project; and
to include in the Contract Documents a ternate bids to adjust
the Construction Cost to the fixed limit- Fixed limits, if any,
shall be increased in the amount of an increase in the Contract
Sum occurring after execution of the Contract for
6 1994 - THE AMERICAN INSTITUTE O C IT C S, 735 E K AVENUE, N. W., WASHINGTON, D.C. - DOCUMENT
OWNER-ARCHITECT AGREEMENT FOR HOUSING SERVICES - AIA® - WARNING: Unlicensed photocopying violates U.S. copyrlght laws and will subject
the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your
license without violation until the date of expiration as noted below. expiration as noted below. User Document: 0249.doc - 2/2/2004. AIA License
Number 1016321, which expires on 7/30/2004.
Electronic Format B181-1994
4
Construction.
5.1.3 If the Project budget or fixed limit of Construction
Cost is exceeded by the lowest bona fide bid or negotiated
proposal, the Owner shall:
.l give written approval of an increase in the Project
budget or the fixed limit;
.2 authorize rebidding or renegotiating the Project
within a reasonable time;
.3 if the Project is abande;.Ted, terminate in accordance
with Paragraph 8.2; or
.4 cooperate in revising the Project scope and quality as
required to reduce the Construction Cost.
5.2.4 If the Owner chooses to proceed under Clause 5.2.3.4,
the Architect shall endeavor to comply with the Project budget
or the fixed limit of Construction Cost by making
modifications to the Contract Documents. The making of
such modifications shall be the limit of the Architect's
res risibility arising out of the establishment of a Project
b et or a fixed limit of Construction Cost. If a fixed limit
has n established as a Condition of this Agreement, the
Architect shall not obtain an increase in compensation for
making such modifications unless the fixed limit has been
exceeded due to inaccurate cost estimating by the Owner's
consultant. If no fixed limit has been established, the
Architect shall receive an increase in compensation for making
such modifications. The Architect shall be entitled to
compensation in accordance with this Agreement for all
services performed, whether or not the Construction Phase is
commenced.
ARTICLE 6
USE OF ARCHITECT'S DRAWINGS,
SPECIFICATIONS AND OTHER DOCUMENTS
6.1 The Drawings, Specifications and other documents
prepared by the Architect for this Project are instruments of
the Architect's service for use solely with respect to this
Project, and unless otherwise provided, the Architect shall be
deemed the author of these documents and shall retain all
common law, statutory and other reserved rights, including
the copyright. The Owner shall be permitted to retain copies,
including reproducible copies, of the Architect's Drawings,
Specifications and other documents for information and
reference in connection with the Owner's use and occupancy
of the Project. The Architect's Drawings, Specifications or
other documents shall not be used by the owner or others on
other projects, for additions to this Project, or for completion
of this Project by others unless the Architect is adjudged to be
in default under this Agreement, except by agreement in
writing and with appropriate compensation to the Architect.
6.2 Submission or distribution of documents to meet
official regulatory requirements or for similar purposes it)
connection wilh ,sue Project is not to be construed as
publication in derogation of the Architect's reserved rights.
ARTICLE 7
RESOLUTION OF CLAIMS,
DISPUTES OR OTHER MATTERS
7.1 ARBITRATION
7.1.1 Claims, disputes or other matters in question
between the parties to this Ag?reement, arising out of or
relating to this Agreement or the breach thereof, shall be
subject to and decided by arbitration in accordance with the
Construction Industry Arbitration Rules of the American
Arbitration Association currently in effect, unless the parties
mutually agree. otherwise. Demand for arbitration shall be
filed in writing with the other party to this Agreement and
with the American Arbitration Association. A demand for
arbitration shall be made within a reasonable time after the
claim, dispute or other matter in question has arisen.
7.1.2 No arbitration ari sing out of or relating to this
Agreement shall include, by consolidation, joinder or in any
other manner, an additional person or entity not a party to
this Agreement, except by written consent containing a
specific reference to this Agreement signed by the Owner,
Architect, and any other person or entity sought to be joined.
Consent to arbitration involving an additional person or entity
shall not constitute consent to arbitration of any claim,
dispute or other matter in question not described in the
written consent or with a person or entity not named or
described therein. This agreement to arbitrate and other
agreements to arbitrate with an additional person or entity
duly consented to by the parties to this Agreement shall be
specifically enforceable in accordance with applicable law in
any court having jurisdiction thereof.
7.1.3 In no event shall the demand for arbitration be made
after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matter in
question would be barred by the applicable statute of
limitations.
7.1.4 The award rendered by the arbitrator or arbitrators
shall be final, and judgment may be entered upon it in
accordance with applicable law in any court having
jurisdiction thereof.
7.2 MEDIATION
7.2.1 In addition to and prior to arbitration, the parties
shall endeavor to settle claims, disputes or other matters in
question by mediation in accordance with the Construction
Industry Mediation Rules of the American Arbitration
Association currently in effect, unless the parties mutually
agree otherwise. Demand for mediation shall be filed in
writing with the other party to this Agreement and with the
American Arbitration Association. A demand for mediation
shall be made within is reasonable time after the claim,.dispute
or other matter in question has arisen. In no event shall the
v Ib219 - Inc A1V1an44.nw nv3115um ur An?rnit?n, usP rHtw YUKK Avtnut, n.w., wASrnNul n, U.L. [PUG-5M. AIA ooLUMENT 3151 -
OWNER-ARCHITECT AGREEMENT FOR HOUSING SERVICES - AIA® - WARNING: unlicensed photocopyi violates U.S. copyright laws and will subject
"violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your
license without violation until the date of expiration as noted below. expiration as noted below. User (Document: 0249.doc - 2/2120W. AIA License
Number 1016321, which expires on 7/30/2004.
Electronic Format 8181-1"Al
5
demand for mediation be made after tht -J'e when institution
of'legal or equitable proceedings based on such claim, dispute
or other matter in question would be barred by the applicable
statute of limitations.
ARTICLE 8
SUSPENSION, TERMINATION OR
ABANDONMENT
8.1 This Agreement may be terminated by either party
upon not less than seven days' written notice, should the other
party substantially fail to perform in accordance with the
terms of this Agreement through no fault of the party
initiating the termination.
8.2 This Agreement may be terminated by the Owner
upon not less than seven days' written notice to the Architect
in the event that the Project is permanently abandoned. If the
Project is abandoned by the Owner for more than 9o
consecutive days, the Architect inay terminate this Agreement
by giving written notice.
8.3 if the Project is suspended by the Owner for more
than 3o consecutive days, the Architect shall be compensated
for services performed prior to notice of such suspension.
When the Project is resumed, the Architect's compensation
shall be equitably adjusted to provide for expenses incurred in
the interruption and resumption of the Architect's services.
8.4 Failure of the Owner to make payments to the
Architect in accordance with this Agreement. shall be
considered substantial nonperformance and cause for
termination.
8.5 If the Owner fails to make payment when due the
Architect for services and expenses, the Architect may, upon
seven days' written notice to the Owner, suspend performance
of services under this Agreement. Unless payment in full is
received by the Architect within seven days of the date of the
notice, the suspension shall take effect without further notice.
In the event of a suspension of services, the Architect shall
have no liability to the Owner for delay or damage caused the
Owner because of such suspension of services.
8.6 In the event of termination not the fault of the
Architect, the Architect shall be compensated for services
performed prior to termination. together with Reimbursable
Expenses then due and all Termination Expenses as defined in
Paragraph 8.7.
8.7 Termination Expenses are in addition to
compensation for Basic and Additional Services, and include
expenses directly attributable to termination for which the
Architect is not otherwise compensated, plus an amount
computed as a percentage of the total compensation for Basic
and Additional Services earned to the time of termination, as
follows:
.1 20 percent if termination occurs during the Design
Phase; or
.2 io percent if termination occurs during the
Construction Documents Phase; or
.3 S percent if terminalion occurs during any
subsequent phase.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 Unless otherwise provided, this Agreement shall be
governed by the law of the place of the Project.
9.2 Terms in this Agreement shall have the same
meaning as those in AIA Document A2oi, General Conditions
of the Contract for Construction, current as of the date of this
Agreement.
9.3 Causes of action between the parties to this
Agreement pertaining to acts or failures to act shall be deemed
to have accrued and the applicable statutes of limitations shall
commence to run not later than either the date of Substantial
Completion for acts or failures to act occurring prior to
Substantial Completion, or the date of issuance of the final
Certificate for Payment for acts or failures to act occurring
after Substantial Completion.
9.4 The Owner and Architect waive all rights against each
other and against the contractors, consultants, agents and
employees of the other for damages, but only to the extent
covered by property insurance during construction, except
such rights as they may have to the proceeds of such insurance
as set forth in the edition of AIA Document A=, General
Conditions of the Contract for Construction, current as of the
date of this Agreement. The Owner and Architect each shall
require similar waivers from their contractors, consultants and
agents.
9.5 The Owner and Architect, respectively, bind
themselves, their partners, successors, assigns and legal
representatives to the other party to this Agreement and to the
partners, successors, assigns and legal representatives of such
other party with respect to „all covenants of this Agreement.
Neither Owner nor Architect shall assign this Agreement
without the written consent of the other.
9.6 This Agreement represents the entire and integrated
agreement between the Owner and Architect and supersedes
all prior negotiations, representations or agreements, either
written or oral. This Agreement may be amended only by
written ittstruntent signed by both Owner and Architect.
9.7 Nothing contained in this Agreement shall create a
contractual relationship with or a cause of action in favor of a
third party against either the Owner or Architect.
9.8 Unless otherwise provided in this Agreement, the
Architect and Architect's consultants shall have no
responsibility for the discovery, presence, handling, removal or
disposal of or exposure of persons to hazardous materials in
......, ... .?. ....... -..y v.-.. r.v..vvva?a. ,-.! VV\.v1gc1?, avow -
OWNER-ARCHITECT AGREEMENT FOR HOUSING SERVICES - AIA® - WARNING: Unlicensed photocopyitjg violates U.S. copyri t laws and will subject
the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be repr In accordance with your
license without violation until the date of expiration as noted below. expiration as noted below. User 'Document: 0249.doc - 2/2/2004. AIA License
Number 1016321, which expires on IW2004.
Electronic Format 11181-1994
6
any form it the Project site, including but not limited to
asbestos, asbestos products, polychlorinated biphenyl (PCB)
or other toxic substances.
9.9 The Architect shall have the right to include
re presentations of the design of the Project, including
photographs of the exterior and interior, among the Architect's
promotional and professional materials. The Architect's
materials shall not include the Owner's confidential or
proprietary information if the Owner has previously advised
the Architect in writing of the specific information considered
by the Owner to be confidential or proprietary. The Owner
shall provide professional credit for the Architect on the
construction sign and in the promotional materials for the
Project.
ARTICLE 10
PAYMENTS TO THE ARCHITECT
10.1 PAYMENTS ON ACCOUNT OF BASIC
SERVICES
10.1.1 An initial payment set forth in Paragraph na is the
minimum payment under this Agreement.
10.1.2 Subsequent payments for Basic Services shall be
made monthly and, where applicable, shall be TII proportion to
services performed within each phase of service on the basis
set forth in Subparagraph 11.2.2.
IA I -_ IC ...,a ?? •1... *L- A:«,e -1480-1
tie8 ZI2 O? ? ??
10.1.4 V&& compe s io sect pefc'ent-age of
Construction Cost, and any portions of the Project are deleted
or otherwise not constructed, to the extent services are
performed on those portions, compensation for those portions
of the Project shall be payable in accordance with the schedule
set forth in Subparagraph 11.2.2, based on (1) the lowest bona
fide bid or negotiated proposal; or (2) if no such bid or
proposal is received, the most recent preliminary estimate of
Construction Cost or other cost estimate as described in
Subparagraph 4.7 for such portions of the Project.
REIMBURSABLE EXPENSES
10. Reimbursable Expenses are in addition o
com sation; for Basic and Additional Services and ' actual nditures made by the Architect in the YWO'
f
the Proie for
.1 Ira! ?orlation and Iiviug expenses in on11ection
with It-of--town travel as authorized by le Owner,
.2 long-dis ce communications;
.3 fees paid fo ecuring approvals authorities having
jurisdiction o r the Project;
4 expense of repr actions, tage and handling of
Drawings and Sp- 'ratio a
l other documents;
5 expense of render, , models and mock-ups
requested by Ilse Owr
6 if authorized in atlce the Owner, expense of
overtime work airing er than regular rates;
and
7 expense o any additional in ance coverage or
limits, it uding professional bility insurance,
request by the Owner in excess that normally
carrie by the Architect and a Architect's
10.3 PPMENTS ON ACCOUNT OF ADD
RVICES
10.3 Payments on account of the Architect's Addt `
Se es and for Reimbursable Expenses shall be
r Ithly upon presentation of the Architect's statement
ices rendered or expenses incurred.
10.4 PAYMENTS WITHHELD 3 ? 2'12-1 *'
10.4.1 No deductions shall be from the A J it I
compensation on account of penally, liquidated d ag s or
other sums withheld from payments to contractors, or on
account of the cost of changes in the work other than those for
which the Architect has been farad to be liable.
ARTICLE 11
BASIS OF COMPENSATION
The Owner shall compensate the?.Architeci as follows:
11.1 AN INITIAL PAYMENT' of Zero Dollars (s 0 ) shall be made upon execution of this Agreement and credited to the
Owner's account at final payment.
11.2 BASIC COMPENSATION:
OWNER-ARCHITECT AGREEMENT FOR HOUSING SERVICES - AIA4D - WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject
the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your
license without violation until the date of expiration as noted below. expiration as noted below. User Document: 0249.doc •- 2/2!2004. AIA License
Number 1016321, which expires on 713012004.
Electronic Format BIB1-1994
1
11.1.1 I'l ilt IIASI(• SURVIC1,S, as dwa tilted in Atlicle > au?d :my other services included in Atlicle tz as part of Basic Services, Basic
?:ontpc'nsation Shall 1w r onlptlled as (idlims:
tlhw, Incol lelsic o(rmnlt•m:rtion. %nrhrrli>rn• s/ilarb/vd vans, trrrrllil,G•I orlt•rr•ell/a es, and idrnliti• phairs Irr n•hic•h 1+rnlictilir nrclhcxls o(*c•onq.rn atit)n alrph; it,
Fixed_ Feg.($251,U3"7.00)
11.2.2 Where con?pensation is bass d nn a stipulated srtni or percentage of (:onstructicrn ( :osl, progress payniews for Basic Services
in each phase shall total IIle. followit?t; p on Irnlal;t's oI*the lolat Basic (::on?pcnsalioo payable:
rlacc11,a1Jition.il ph.ite, ?s .11,/,n,1vial•, )
Design Plwa c:._............_..... $.12,551,135
c.;onslruilion 14x:u?ncnlS I'h,?ti?: $?50,t322.20
Bidding or Negotiation i'hase: $37,655.55
(..onslrucliort ['has(!:- $50,207.40
F1ve percent ( 5 0%)
?jft percent ( 60 %)
f=ifteen percent ( b %)
Twenty percent ( 20 %)
'I'o1'- alBasa: t:ctts?pel?sation:., ,.. .._W$1,037.00
one uu? rec percent (ioo%?
11. COMPENSATION FOR ADOIiIONAI. SERVICES
11.3.1 1- PRO)1=t.71' RE.PRESEN•I'A'110N 111-A0ND HASIC St=.RVl(:I S, as described in Paragraph 3.2, ccn»pens n shall be
eontpuledas ows:
/lnsr9tINIS&01•ronrl. a/inn,irn•luJinllsli/'rrl.Itrr/Qrrnc,nru/ti/,lr r,r/h'rii'nL1?C6!
11.3.2 I'OR ADDI'I'I( I, SL•:RVI(:Ia OI' 'I'I If: Allt:I 1111i(A ', as described in Articles 3 and 12, other an (r) Additional Project
Represenlalion as descril?ec ' Pairagraph ,;.z; and (z) services i11c1uded in Article 12.1S parr( of Basic Se ' es, but excluding services of
consultants, Conipe?isalion sha to cruttpu(ecl its follows:
/brarthtsisorcwnhrnsa(inrr,inl/ulift gr anti,unnrhryrlcsnlY7inrl/'rrs<rnnclGrlxnschvpnncilx/1canJcmphpccs,ar JrMil7xinci7xv/soar/c%ssilvcrnp/o) trs,i/
mludirt.lrlenli!•.slt-dri rerl rrstoit. ichI it//urn/•thoIAot'rnmlrn.caticmalry,/r: ifnevessan:)
Three lime irvci.exc?ells_
11.3.3 FOR Al DFFIONASEP\/i(:I?S ( t?NSlilincluding addilional s ctural, mechanical and electrical engineerin
sea ices and those provided under Paragraph ;. identified in Article 12 as pail o c dilianal Services, a nndtil?le of One a a hat
( 3,5 ) times the an?otntls billc(1 it) the Art hitecl I'd uch services.
//Jrn(%?' F1.Yr7?r (1'/k'.S / It t 4,nff Ih.7/+(r 1 n .1 1111'/(' 1.,, I / /t t1/!!Rt I )
11.4 REIMBURSABLE EXPENSLS
11.4.1 1'011 RE.INIIil.IRSABLE 1 X1'l:NSI:S, as described in 1' gr< ? ?0.2, and any olhcr ilcn?s included in Article 12 as Reinibursal
Expenses, a Inuhiplc> of Zero (0) tirueS lbr expenses i rrre<I by Architect, the Architect's entplo)>ees and consultants in t
interest of the Prolccl
11.5 ADDITIONAI. PROVISIONS
11.5.1 11`411E BASK, SI R\'I(:I S covere ?)• this ,Agreement have nol been comp d within Twenty (,2Q) inowhs of the d<
hereof, through no fnrll of the Arc•hile extension of the Architect's services beyond 1 lime shall be contpensaled as provided
Paragraph n.3.
11.5.2 Payments titre due art ayahle TI ,11dy ( 3Q )clays from the (late of the Architect's Lnvol Amouits unpaid Ij>t ( 3Q
clays after the invoice dale 1 hear interest at the rah, entered below, or in the absence thereof, at t legal rate prevailing from rim
to tittle at the principal cc of business of the Architect.
!/r?-sett rill, of inten'st ;(gar 11,o1'c l
(l.lsuq /.ass anJ rimnunGs unJerthr /'ir/err/ 1,1711h ill lrn,/infs .Ict. mil ihrstate•andhycatomsurnerrm/it Lnl acid other mgaltdonsa(1 ivner'sandAnh%te,
/+/mrs ofIvis%r the to :ition cl0be !'rc of and cl -ichrrr utar a11i•rl the ia/id%q• o0his /In Ivisloll, .tilvd is hr-.11 a(hice shvicld 1%. obtain/ uit t to JeA. %ou,
InodiAcatio , nda/so rtxanlirtq ityid •nrr/tts srr,h as n'ritterr(hkcins'tnt rot traitrrs.) ece I'll e rates and un?Itiples sl:l firth for Additional Services shall Ix annually adit?stedlill accordance with normal
s of the Architect.
v ra7-t - Inc rHnemmP%m m`I3r?rvit jur Nmt_rrnrt%_t], vs:i ntw runr% Avtnut, rv.w., "3"1IVUIu .(, 'UUV6-S l9' AIA UC7CUMENT 8181 -
OWNER-ARCHITECT AGREEMENT FOR HOUSING SERVICES - AIA44 - WARNING: Unlicensed photocopyln viUolates U.S. copyright laws and will subject
the violator to legal prosecution. This document was electronically produced with permission of the AIA a d can be reproduced in accordance with your
license without violation until the date of expiration as noted below. expiration as noted below. User ocument: 0249.doc -- 2/2/2004. AIA License
Number 1016321, which expires on 7/30/2004. 1
C
C
0
N
4
Electronic Formal 8161-1994
P
r.
ARTICLE 12
OTIICII CONDITIONS OR SERVICES
r/nsrvr dixinj fri+n.r nl rfnc7 srnirt?s, idenfili- I+l'h'If,+n,11 ,4'rn b r. irndndol uilhin flash- r.i+rn/x rrsalinn and modiliralions to lhf• r.•{anent and cont/xnsarinn rents
irrmhahdinthis .I,arrnxvN I
1 A PaY_1tEe( t0-00%.of the:fee ($200,820.60) shall he made.al_inilial.etldor:5e lmit.
'I his Agrcc?ncnl cnncrrvl inio as olfthe &Iy vuI 1ru lirsl wrillen above.
OWNER ARCHITECT
wgr?aru - - - - - - - - ? ?? rknarerri?l
Thomas W. Oauahen. '
P.O. Box 686, Camp Hill PA 17001-0686
v 1779 - 1"r AIVI[111t-An 1173IIIVIt Vt AKUPIt1.15, 1/.A MW TVKK AVtrVUt, mW., wAbN1rVWU , a.c. ZUW6-5292. AIA DOCUMENT 6181 -
OWNER-ARC141TECT AGREEMENT FOR HOUSING SERVICES - AIA44 - WARNING: Unlicensed photoCOpyin violates U.S. copyrt ht laws and will subject
the violator to legal prosecution. This document was electronically produced with permission of the AIA a d can be reproduced in accordance with your
license without violation until the date of expiratinn as rioted below, expiration as noted below. User ocume.N: 0249.doc -- 2!212004. AIA License
Number 1016321, which expires on 7/3C12(X)4.
Electronic Format 8181-1994
9
Amendment to AIA Document 8181, Standard Form of Agreement
Between Owner and Architect for Housing Services
The provisions of this Amendnient supersede and void atl inconsistent provisions between
(fie Amendment and the Agreement.
1. Definition of terms used in this Amendn?er?t.
a. Agreoment. AiA Document 13181, Standard Form ol'Agreement Between O wnerand
Architect for I lousing Services.
b. I-JUD. The U. S. Department Off lousing and 1 Irbiln I ).;velopntent.
c. Owner. The Mortgagor/Owner.
d. Subcontractor. Any Project subcontractor, mawrials supplier, equipment lessor or
industrialized housing n?anufacturer/supplier.
2. The Owner and the Architect represent, that they are tc?miliaC'with IIUD requirements,
including the Minimum Property Standards, hair Housing Accessibility Guidelines,
Uniform Federal Accessibility Standards, and architectural requirements of this Guide
(See Chapter 5 ___), as set forth in publications given to then by IIUD for this Project
and will perform all services in accordance with (lie applicable requirements of I IIJD.
3. No portion of the Architect's services and responsibilities or the Owner's responsibilities
shall be assigned, transferred or delegated to anyone nut acceptable to HUD.
4. The Architect shall advise I lUD as well as the owner ol, any emissions, substitutions,
defects, and deficiencies observed in the wort: of the C'onvactur.
5. The Architect shall issue Certificates of I?aynicnt and (,ertificaws of Substantial
Completion in the form prescribed by HUD.
6. The Arebitect shall furnish copies of all Architect's Supplemental Instructions to the
owner, Mortgagee and [IUD.
7. If the project (or which the drawings and slice iIications prepared by the Architect has not
been completed and there is it defatilt or forc°elosure, the Mortgagee or FILJD may use the
drawings and spcc:itications to complete consinicliou (W the prciieet without additional
cost.
8. The Agreement shall not be terminated withuui J days prior'vriUen notice to the
Mortgagee and 111 I D.
03/15/2002 Section 6.2 -- Page 1 of 3
1
r1.l.rtr?;i?tlix t? II?tit11i111CF:
Closings
Appendix,12 Insurance
Closings
9. The Owner and the Architect recognize file interest of [fie Mortgagee and I-IUD and that
any action or determination by either the Owner or the Architect is subject to acceptance
or rejection by the Mortgagee and by I-IUD.
10. The Owner and (lie Architect shall recognize as a valid reason for termination, any
request by MUD fur termination because,of inadequate pcsrformance, undue delay or
misrepresentation which may make the farther services of the Architect unacceptable to
HUD.
11. Tile Architect administering the Constructio?? l'ontratc:t may not have an identity of
interest with the Owner, Contractor, and/or any Project subcontractor. An identity of
interest is construed to exist where:
a. Tile Architect has any financial interest in the Project other than the fee for
professional service.
b. The Architect advances tiny funds to the Owner, Contntetor and/or tiny subcontractor,
and/or the Contractor and/or any subcontractor advance any hinds to the Architect.
c. The Architect has any financial interest in the t )wiser, Contractor and/or any
subcontractor; or the Owner, Contractor and/or tiny subcontractor has tiny financial
interest in the Architect.
d. Any officer, director, stockholder or partner of the Architect has any financial interest
in the owner, Contractor and/or any subcontractor; or any officer, director,
stockholder or partner of the Owner, C'ont•actor and/or any subcontractor has any
financial interest in the Architect.
e. Any officer, director, stockholder or partner of the Architect is also all officer,
director, stockholder or partner of the Owner, Contractor, and/or any subcontractor;
or any officer, director, stockholder or pariner of the Owner, Contractor and/or
subcontractor is also an officer, director, stockholder, or partner of the Architect.
f. The . lwner, Contractor and/or any subcontractor, or any officer, director, stockholder
or pr rtner of such Owner, Contractor and/or subcontractor provides any of the
required architectural services; or where the Owner, Contractor and/or any
subcontractor, or any officer, director, stockholder or partner of such Owner,
Contractor and/or subcontractor, while nut directly providing an architectural service,
acts as a consultant to [lie Architect.
g. Any family relationships between (lie officers, directors, stockholders, or partners of
the Architect and officers, directors, stockholders or partners of the Owner,
Contractor, and/or any subcontractor; or between the officers, directors, stockholders
or partners of the Owner, Contractor, and/or any subcontractor and officers, directors,
stockholders, or partners of the Archi(ect Ihat could cause or result in control or
influence over prices paid to the Architect and/or perti?rmance by the Architect.
0311612002 Section B.2 - Page 2 of 3
APIMIMIX 1,4 li?awauue
Closings
h. Any side deal, agreement, contract or undertaking, thereby altering, amending, or
canceling any of the required closing documents, except as approved by 1- IUD.
12. All identities of interest known to exist between the Architect and the Owner, Contractor
and/or -,ny subcontractor are listed herein. The Architect and owner shall each inform
HUD in writing within 5 working days of its knowledge of any identity of interest that
develops after execution of this Agreement.
List All Identities of Interest:
V VAT
DATE
ARC! lITEIICl'
J AM F--- ?? Eta
DATE
WARN[r: Title 18 U.S.C. 1001, provides in part that whoever knowingly and willfully makes or
uses a document containing uny fiilse, lictidous, or frutiduleni s(alement or entry, in m)y matter in the
jurisdiction of any department or agency of the United Mates, shall he tined not more than $10,000
or imprisoned for not more than 5 years or both.
03/15/2002
Section B.2 - Page 3 of 3
nuu-cc-cuu0 Ilul`I u 1 i 4u rri arltt ; t HAUNARDNRR ARCH 717+037+9178
P, 02
INVOICE FOR
ARCHITECTURAL SERVICE
AIA DOCUMENT G802
PROJECT Brambles Arms Apartments DATE May 14, 2004
(Narne, address) 5300 Lenker Street
Mechanicsburg, PA 17050 INVOICE, NO:
TO: ARCHITECT'S 0249
PROJECT NO:
Thomas W. Gaughen T?
Brambles Arms Assoc.
P. 0. Box 686
Camp Hill, PA 12001-0686
There is due at this time for architectural services and reimbursable items on the above Project, the sum of:
Two hundred thousand eight hundred twenty-nine & Dollars$ 200,829.60
60/100 --
The present status of the account Is as follows:
Due and paybl.e for architectural and engineering services rendered
for the above mentioned project per contract dated February 2, 2004.
ARCHI ECT: ame B. Ba.umga dner
By,
ADDRESS: 141 Broadw Y Suite 220, Hanover, PA 17331
Etf AMHUtiCAp INaCt1IITo OFCA TICYd,tT1733 NlWIYOWK Al E., H tW,,, WASH?OTOJ' p.C.
PAGE
I 1B
Tom aaugt,Pn Fax l3?71 r93}9600 PHONE NO. : 717 75.3 960k,
MAY 19 2e04 16.82 PR PRULMWIPL
Connie Sankt
Mud.nval Numoon ftlye
Two ftvlnla Ddva, Suite 1400
Atlento, GA 30340
Deer Me, f9•'tnke:
TO 917177MG00
May. 20 2004 08:27AM P3
P.0a-*07
Q. $. b"atlemat of 8nt=lat M4 Iftes D"GIA" At
ftA3LW4ftLvtula aye
the vas mal"Pr s+d,ldfXv
109 "M ?84"To A"k
i'ltilgdelph". plssa'VIVOU" L9107-3180
Sub)ect Commitment to Insure Upon CoWl®tlan
Seaton 221(dx4 Now Cenammiion
BmmWes A"m Awwwo
6300 Lenker Streot
MechantcebuM (Cumberland Co.), PA
"act Nurnbor. 03446273
MAY 18 2004
r
We are pleased to natlty you that your Multifamily Aecelereted Pnxesefng (MAID)
rim Commitment Appltcaaott noWed by thts ottitm 090wrbert 31, 203 for Montage
Ineurence under the Beedon 221(dx4) Program Is Ihemby approved.
Godos:ed herewb Is the Firm Cornm9ment in an crWnew and two (2) copies.
ipso have all copies of this form executed by the MatrVsgor end Mortgagee and
return two fully woeuted eepisa fn tPtis *Moo to tha aftn% t of the undetmlped. We
must mcefve your acceptance of the Finn Commitment within ten (10) wo jp drA
from the aste of this latter.
The following dammerrts are enclocad In oanneetian with this comfit; % 2) Pwpe* IInsi$ moe Reeements. fro 47,e dJP ap* ty u nee
Schedule, Fenn HU13412M.
3) Form NUD- =84, trru OMAy SUMMalry Appraisal ftport
4) Form HUD-Me", Pmj"Anaiyais
5 8 % d Ck5mbinetd Form HUD 2326, contaGtO s arlftr Morlpille'a Coat
8 Appmgvrd Af mittivA Fair HOuvng Morhe?tlng Plan
7 ApPMWd PMAGUS PSHMpetion CsrtMaWana, p'eM 253D
P'Ieeie nacre that thts come+ll "w t expires wkhln Odd (00) calendar dop of dw
date MOW on Ow endaaad Firm Cmmitment farm. Theroktre, you munt pppooe•d to
initiailrinl endorawwnt within fats time frame. W4 request that eubn* thtev (3)
*^P *eta of olaeMg d+x~urnart?l hr their artttwrty, w!lFdn two ( wedke of the pate of EXHIBIT
title latter. MUSe tef' to APW4bt 12 of the MAP Guide for the list of milked efwkag
exhibits. Once the draft axhlbb ate epW"d, you wM then fUmj$h three (3) ealnOVA
«?! llolmo•r Nh1 ?erWlt-! ??ItI?IN •1nIWl?+d +??rl ?et*atl-tr
a iE 3Wd 5998 Z69 LTL: Xuj S3S I &W3A3 MUM3NO9: Q I Z0: 9T 90. VOLT T Lir9.ON 3114
'Tom Gataghen Fax #(71`,, ?63-9600 PHONE NO.
MAY 19 2W4 16102 FR pkLVEWIAL
717 763 96OW
7D 9171?76396W
P.0v e?
cou of amhfbft ft e use at die ckU Mp. Yho" dWUM Ms ShOU 3 0180 be SUbMMW b
the vnderwoned.
if you have any quesdone meted to these dowm , please Canted Ms.
Rambo at 21549*4008. W 36M.
?irtoarelY.
Rode# M. BMW
Olrec wt PrOd MUBCOmarrt
Phltad*hia WM"Iy Office.
Endesure
ca cowrie Banks
Prudential Hurt w Pato
Via Fax: 77"9"?"
tlt-? ito/tao•a 1?t-.? ttlnuatit ? 1?1NIO?t?'k?A rtilid?o?? ?ot?t? tot-?n-ti
9 i17 391dd 9998 3£9 L T L : Xtl3 S3S I lid LIM 00OV13N09 : Q I 3Q : 9 T 90, b0i T t )#51-ON 7I T 4 .
May. 20 2004 08:28PM P4
Trim Gaaugheri Fax It 0717' 349600 PH CK NO. ? 717 763 SUID May. 20 2004 08: 28AM P5
Mid .19 2004 16a OS PR PRIfi9W 1 AL To 91.71WONO0 P l OGII 7
i
? - Y?Y? .?r+? ??.r 11 ! ? - VIII {
6. My a In t6 Dtawtaps wd Opselfisalou¦ or is tan eoOldoal
apoo whio this manwi a w to brand. WO am dlbl! the due
hwt 4 #wil be, expbllrsed in w lnaG or in a stnpa r,oetery ioualdiva
it r"ah ad bit tho Gerw datiamm "a nwss be, a kirevrst to dw
C MM21nioh'' PrW W COW Mdbtloeeaotlr. Arly ON: allows 0000,
Ant subsaovat to Isitiel eswarrarown mat ea brtwflstto Aw Obo doo
of die Costrahelater hOOMIilsstslisl "M easdtrAOIG& aNd. asaaapt 00
!etch clixopa th tbe. Ilvswluts amd :Qoeelficatme, *Welt emjy be
ut6 010 by the AftNem must betppruwd by this eMaflleelwer
pow' to the am 00 Mhfoh do dedamlJelMtdar 4 tY M ap)s "It
ANY Autbat adwWo roe IgSMrMao. Chaajen 1# 60 UNWftlyi lead
$#w"O ¦ -ble4 ralre M ANY Of Nd a1rEOM CM LW W, er
will. dwep ft 44021t msv*j , er we matt in u nn Co"ashtdra
eooer;o dad mt dmmw Ot ow" Own X* Of tha eo"Wa savnnat av
be effected vely with the prior rllRa applaud of the Larder uid tbe
Catat"iaaep. Tim Coslaatat"or'i qpovw et' my wspp?a Ow
serlbed above my to abjpw to each mamas md pfellwal as st
rhr Co"Ise otut Is Ws diacaetied 4w PlIe IL
7. Ir ands t" W" td dse JahdMNam in wMch ft tstsdeet h 16eeted4
the pesosal peodotq of the Iderquer, rfdeh its "" is ttla trpwafinp
9f *c pwjat, is not eownd by and eaMm to tlta teal eehtte
tits Uw%aaen thwt hgalrs red saeejve Rona the 1dq=Ot. to
dw And Inaames sdolmn ?ear of dw tssrt op sate. ¦ I<aasdW
Aprsause S and a PiftO lyd Sesxeeraan a ta0h Other eve OMY ldrba-
metaespybsocae"Myavst1'reetlflstitNrAvdratthparslvaaip s"tr
is 6"" ed' d>.114ortpspae.
I. Aar cLswpe in ,tls spa wrilitp Open *Web dds canunt eve La
prrdicaud Oak be tWcsud In *Ada by whet i?d'oraNN on bsdtelf or
my Aroooeed sobsdta t ¦paasar. rand sak tagdut mart N L
+ni6q by &e CwmisOwn t. Ayr operator ar priw4W $ the
Adhd?A is ar any paten esft Of ends stpMW Or Vd> C("#• WM it
avw w Ave ate?' !star Zsasoerea farahed )e till pr4ed by *vy d
11sssseal intsm% eotpleynou or erbetwiisa, stud who het rat fled, a
swednpue with else Cataelte&mr JWly dlrotortlth Me purview per
delvab a Is PRA := isaserann vcvsta . sdesff stela we* eeetllf-
ear an tM by !! Iba Ceerulhalattet Mfd rterat be epttrowd
by the &;;Iiisa
P. AH ctrddestea, dour %vL and "tdaatt ssoal few by this
coa?tl hment shell be we Amu sppro cd or prate bed by W Commii.
sinner and SW bo mWivsdd, lsb osil ad filed bl dse aamisat or
CO&I sad in Xwh enttsttlar as he am Maatihe.
•'lho abort aetarr,MSrstgata? irysnr t1 ttarslsy
.alrwt?rilsgt?el t?tn. irw tee
ttrr.bp ? 1o bretns! etrfrl tanlnl
maree?.
elltusirtre AM Iesiasslraae, LP
MO"W
Pryds"W HanOM P111iat
ge1110eMwasMd w?61a.....s.....w
UN Allu OA'd ON
/S Mldd 9998 Z89 LTL: Xd3
10. ?bl9 emnakalrsat owl tretalnatr AID drys !tee
rile dram bssrnor Unless renew" at swe ade/ isfr the Cotaeetariaaa
pace ro so rera.nd or eaee il" of we route asenu do CMWWs
61OW rnsly, st his 0005. trOtarratue the aaeltmttsreat b dcleterisw
rrbeehw it etas!! bt: atilOWW N the susge summt, or.aelt bG mtodm
w lnplada a loom aatpnu.
1 L A "qq ua% sw tot: Mrislus at tilk WwOmed widbiu vo dssya o
ttt Urslaaslen retreat U sOCONjun end by dta trMp clap !ee praeatbet
by, the ifojMnp.
12. The DddV AR ebiwa and are ? erblearol aslailolararbsa tba aeeetime
fiats awo:Mat ebpb uwiu be ewwssd b?? a pa?flq? of pptc?ortie?ttU tirbllt?!
Ibs?nttutolNeastmofalltapeleattss ,lsuaMrffittWleRSpteetiat: Ai
lolael rJaAW diece shall, a tb<• uleh? Anil! a Ow wlrtnat
sas:f> it ate Is wb the faftwhtig !beta:
To. 14onpae; and aactetuy ar !rosin wt Obso DOWJOPMCM
i CCgOjr *A .?.r. OtamC of Art hlractl
u Iatered h the evaaunt of s ?,_...?,r_
Polky ot?dsr CNaae atLttit?
ptaite{t oo.l Lt?IIIW le?euia:laer of Airbthct wdW ftlaan
Yaw sttaedo" Is dltetdled w the RVIOtestona ia'ivivr1 tbs rrdomm
or of tr"Sty of As INE&Md awr4m ie VMS or is pit, ad fee
trwsaser of ym riAls. PIAle so. read' oWivatioue order the donut
of on%$" lllinrates•
Apaetel eoMditlena set hw* b.tewt at eEtselled bulge rod Ideadlled a
adsttdotral:lambemd PuM)tX0* ue mob s Aar hMd
bnerd MX to 20
48m my of IkwW: tkberr bestdvpf w
gri• ?WOW i ft COMEWAIDaw
Ilyt law #"M. gja=&E
A t
1411ftwrw ?r°
lifl-1lWli b1M 1a11N?ti111M 'WlI1W?a1 odwal MtI-Aa1Wi
OSI21c1331N3 Ooou%09:ai Z0:91 90, PO/TT ZWON 31I3
? w
Tom Gsughen Fax #01-t:5396M PHONE NO. : 717 763 ?o
MW 19 2WA 16=1SS FR PR,UD6N't'IAL
Stt =bler Arm APRIMMM
twjvct M& c3a.MVS
spedd oo+at
To 91717?639"0
MAY. 20 2004 eS:29PM P5
P.07/07
13. An,A?aemrate et Salty ? dte OvroQ to 13tlubIe! Astms AsvodAtd, 2.P mkt be
sob>radtted. bs aeoerd?lee wt8i ?e 3Gp L?d4'r7'!ca`t pn?aliiit?? dre he?s!et p?io? Fevre t?et
lo.00.
IA. LWYLmdusex"m
TM Feet 6 IRl wNsct dtb. v W4 Is e?ypar? of 66 37A? :? Fier; wMmd as Ttx
pwW . it1.2tW d1$.4sd be SZIHWVlpF.D. 1 6.llra?c syb t •ile sboaf,l bsva > at+ra rmc
pans! Ldo oep Nuu*wfa she tra "0erdc dsavdm T p is Cumberlmd Cm",
m
l 3..* lvtelrssa ,uyd Ssbe At?tesnrat ti+e+le ?ubiee>rs ptopwed d.f i•rcta R6osald br atada hr and
betwm t m &setbled Tewsbnata dos (Omani *waft QC*v more 11A-Aim atr) ad
grambles Amer Anod sev LP (yeopated owaec olstd sw . The teImut hamm ao
shodd of ) u iadles*Q 4m A sesdaed Laoder't doh (he mm on", XUD•01013 rad
1 d. Zadn3t and t7ae-Tlmr 8?atlal ?l,wM?d llectatti?tt Fae
psede evldow atllks vLymeae ofth orl wa SpamW A-sand larasimg >lw ofP ID0
tap""Wd &W aw. ?jeet}? Wvvond IN >srA# brad an $3$0 " dwstlft Wt" caqusxed by disc
8etopdem Tawiip. PA ZMW Code=* (Seed= St I of do LoW ?w O?aaoe fsr
%p*bd by Ctdboi Lib. oo-O t?.'Ibfs Spea+.i ?wesM4 adeuN! Fee of 3Sd per `sd.?tmM
the * kdkdod In jamq? 2, am laetae O n& ;elm M mmuft it., f~ b*
mmnw ft I& UVA" W, QN&L
17. Soils
Tito Milo wipe of st awft rrm" 606A qa L;3CTJl o iA tke Elfin! apart deft4 Ad.+ 6 40
lm;A ">rweaes * mwapdhlco Tb@ tat wt !s+ 9seibom 1.204( en des e?ld w
tam to **mbt levds+do live mod 4mbiidmd 4lydmlbd lho alas<lateld efaetlor
WW tlstw it 70A. ?4eeAM stat oMbbW *A wbWaw and dos b`?CC sst?a s?pt ?? to
"&mtdoekW ta"larl!bystSftu25Ada
>, e. ? su.t ,its seo?ptaar ?. sae+eper?: ?etlsieate, ?nrva?r't and ie?i brtettpocoe ?
di.propae??et?e teobmMadpeiar? olet?.
ettwi te0r110•d t1?t-! !!tt-u1-llt t!!li A11Mrd111A11 'r'tittd??/ ?ttttl 101a't°N'?s
rap TOTAL. PRO AR
9 /9 3Odd 9998 3S9 LTL:XtlJ S3SI&M31N3 OOdl413N09:QI £0:9T 90, b0/TT LMON 3'lI3
Commkt ttt U.N. oep:;nmrr? Hwwns
of
tot Insurance of Advano" omm Ne?wt? a '"?'?
swrem?s.:sas9?.?t,rn.ut?,eia?au?d?wlA fidow H"" oommwootwf
r
James E. Baumgardner
ARCHITECT
July 22, 2004
Mr. Thomas W. Gaugher?; General Partner
Brambles Arms Associatbs.
P. 0. Box 686
Camp Hill, PA 17001-06$6
RE: Brambles Arms Apartments - HUD Project No. 034-35275
530 Lenker Street; Mechanicsburg, PA 17055
Dear Tom:
I am in receipt of your letter dated July 10, 2004 to Prudential Huntoon Paige and assume {hat
this project has been terminated. As you are aware, the consultants and 1 hime provided you the
necessary documents and services for Design, Construction, and Bidding of your project and
expect to be compensated for those services.
You are in possession of my invoice dated May, 14, 2004 in the amount of Two Hundred .
Thousand, Eight Hundred Twenty Nine Dollars, and Sixty Cents ($200,829,60). Furthermore,
you are responsible for an additional five (5) percent termination expense in accordance with
Article 8.7 of our contract. This computes to an amount of Two Hundred Teri Thousand; Eight
Hundred Seventy One Dollars and Eight Cents ($210,871.08).
yment is not received within ten (10) days, efforts will be expended to collect.
EE.Baumgardner
ARCHITECT
cc: David Brinjac, P.E.
ltzak Tepper, P.E.
EXHIBR
141 Broadway, Suite 220; I-lanover, Petitisylvania 17331 + 717-637=6720 4 FAX 717-637=9178
LAW OFFICES
POW-ELL, TRACHTMAN, L,OGAN,
MICIIABL G. TRACHTMAN
PACs. A. LOO C #10
G1,N7TIPPJZ O. GARBLE
BRUCE D. LOMBARDO
LAwRHdCE A. BORDA *
JOSEPH P. TRABucco ,III o
NEIL P. CLAIN, JR. *
JONATHAN K. HOLLIN
DAVID T. BOLGER
RICHARD J. DAVIES *11
STEVEN G. BARDsLEY "
STEPHEN D. MENARD
FRANCIS G. LAROCCA
EILEEN C. CLARK"
DENNIS P. HERBERT "
FRANK S. NOFER *
ANTHONY S. POTTER -
GEORGE T. REYNOLDS
MARY J. PEDERSEN *
FREDERICK M. BREW
JFNIPER L. SuPLEE *
JAMES S. BAINBRIDGE
KEVIN K. CARTON, JR.*
DIRK M. SIMPSoN , LL.M. (T AKATIoN )*
PATRICK S. CAWLEY
CHRISTOPHER S. KOLLER
GREGORY J. STAR*
*ALso ADMITTEDIN NJ
-ALSO ADM=IN MD
-ALSO ADMTTTEDIN DE
OALso ADMITTEDIN NY
CARRLE & LOMBARDO
A PROFESSIONAL CORPORATTON
114 NORTH SECOND STREET
HARRISBURG, PA 17101
(717) 238.9300
FACSIMILE (717) 238-9325
APOTTER@POWELLTRACHTMAN.COM
W W W . POWELLTRACHTMAN. COM
November 22, 2005
Via Fax and U.S. Mail
Roxanne L. Perez, Case Manager
American Arbitration Association
Northeast Case Management Center
950 Warren Avenue
East Providence, RI 02914
OF COUNSEL
RALPH B. POWELL, JR.
MALCOLM B. JACOBSON
RICHARD T. ABELL
RICHARD L. BUSH
KEITH R. BLACK
475 ALLENDALE ROAD
SUITE 200
KINGOF PRUSSIA , PA 19406
(610) 354-9700
FAX (610) 354-9760
SUITE 304
1814 EAST RouTE 70
CHERRY HILL, NJ 08003
(856) 663-0021
FAX (856) 663-1590
PLEASE REPLY TO :
HARRISBURG
Re: James E. Baumgardner v. Brambles Arms Associates and Thomas W. Gaughen
Case No. 14 110 01879 05
Dear Ms. Perez:
This is in response to Thomas Gaughen's November 18, 2005 letter asserting that
Baumgardner is relying upon inappropriate legal authority to name Gaughen as a respondent.
Contrary to Gaughen's assertion, the Pennsylvania's Uniform Limited Partnership Act and the case
law cited by Baumgardner support naming Gaughen as a respondent.
The decision in TPS Technologies, Inc. v. Roddin Enterorises, Inc., 816 F.Supp. 345 (E.D.
Pa. 1993) clearly stands for the proposition that under Pennsylvania law a general partner is an
appropriate respondent in a breach of contract action where a limited partnership is alleged to be the
breaching party. In TPS Technologies, Inc.. TPS brought a breach of contract action directly
against, among others, Roddin Enterprises, Inc. ("Roddin"). TPS's breach of contract action was
based upon a contract that TPS entered into with Triangle Center Associates, a Pennsylvania limited
partnership ("Triangle"). TPS sued Roddin because the corporation was the general partner in the
Triangle, limited partnership.
HB:54509v1 4059-03
• 9
Roxanne L. Perez
November 22, 2005
Page 2
This is precisely what Baumgardner has done in naming Gaughen. Accordingly, the holding
TPS Technologies Inc. v. Roddin Enterprises, Inc. is directly on point.
In TPS Technologies, Inc. Judge Brody sets forth the issue and her holding as follows:
"Whether the general partners of a limited partnership, including both
the withdrawing and substituted general partners ... are liable to the
contractor for amounts due and owing by the limited partnership? I
find that they are."
TPS Technologies, Inc, 816 F.Supp. at 346. Judge Brody then explains that "under Pennsylvania
law, all general partners of a Pennsylvania limited partnership are liable for the debts and
obligations of the partnership." Id. at 349. (emphasis added).
As a general partner in Brambles Arms, Gaughen is personally obligated to pay
Baumgardner the $210,871.08 owed on the contract balance plus interest, penalties, and attorneys
fees. Gaughen is also obligated to arbitrate the dispute under the explicit arbitration clause
contained in the parties' contract.
Gaughen's assertion that the "universal case law of `Apples v. Oranges"' supports
dismissing him as the general partner from the arbitration is nonsensical. The case law and the.
provision of Pennsylvania's Uniform Limited Partnership Act relied upon by Baumgardner are
directly on point and mandate that Gaughen remain a party to the arbitration.
We look forward to the case administration conference and prompt assignment of the matter
to an arbitrator. Thank you for your attention to this matter.
Very truly yours,
Anthony S. 3Per,
ASP:idm
Thomas W. Gaughen
James E. Baumgardner, AIA
David A. Brinjac, P.E.
Mahendra N. Shah, P.E.
HB:54509vl 4059-03
CERTIFICATE OF SERVICE
AND NOW, on April 30, 2007, I hereby certify that I have served a true and correct copy
of the within document upon the following person(s) via first class U.S. Mail, postage prepaid.
Victor P. Stabile, Esq.
Dilworth Paxson LLP
112 Market Street, 8' Floor
Harrisburg, PA 17101
Anthony S otter/
HB:56695vl 4059-03
N
C.r
f
JAMES E. BAUMGARDNER,
Petitioner
vs.
BRAMBLES ARMS
ASSOCIATES, L.P., and
THOMAS W. GAUGHEN,
Individually,
Respondents
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 07-1509 CIVIL
PETITION TO CONFIRM AWARD OF ARBITRATOR
ORDER
AND NOW, this 3o day of May, 2007, argument on the petition to confirm award
of arbitrator and the answer filed thereto is set for Friday, June 22, 2007, at 11:00 a.m. in
Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA.
It is directed that the petitioner file a brief not less than three days prior to the time
scheduled for argument. The respondent is directed to file a brief not less than one day prior to
argument.
nthony Potter, Esquire
For the Petitioner
actor Stabile, Esquire
For the Respondents
BY THE COURT,
$E .Z Wd OC M [OOZ
KdViONOr• ? Odd 314i 34
K141-40-03113
a t
JAMES E. BAUMGARDNER,
Petitioner
VS.
BRAMBLES ARMS
ASSOCIATES, L.P., and
THOMAS W. GAUGHEN,
Individually,
Respondents
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 07-1509 CIVIL
PETITION TO CONFIRM AWARD OF ARBITRATOR
BEFORE HESS, J.
ORDER
AND NOW, this 9 ' day of August, 2007, it is ordered and decreed that the award
of the arbitrators entered between the parties and dated February 8, 2007, is hereby
CONFIRMED, which award was in the aggregate amount of $384,115.44 plus interest.
Accordingly, judgment is entered in favor of James Baumgardner and against Brambles
Arms Associates, L.P. and Thomas W. Gaughen in the amount of $384,115.44 plus interest of
1% per month pursuant to 73 P.S. 505(d) plus penalty of 1% per month pursuant to 73 P.S.
512(a), both from March 13, 2007, until the date of this judgment, together with interest at the
legal rate from the date of this judgment forward.
BY THE COURT,
/nthony Potter, Esquire
For the Petitioner
/ictor Stabile, Esquire
For the Respondents
89 ?al 6-
JAMES E. BAUMGARDNER,
Petitioner
vs.
BRAMBLES ARMS
ASSOCIATES, L.P., and
THOMAS W. GAUGHEN,
Individually,
Respondents
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 07-1509 CIVIL
PETITION TO CONFIRM AWARD OF ARBITRATOR
BEFORE HESS, J.
OPINION AND ORDER
Thomas W. Gaughen (Gaughen) is the general partner of Brambles Arms Associates,
L.P. (Brambles Arms). Brambles Arms and Gaughen (collectively Developers) sought to
construct a building consisting of 206 apartment units in Hampden Township, Pennsylvania.
The Developers entered into a contractual agreement with James E. Baumgardner
(Baumgardner) to provide "all professional design related services including architectural,
engineering for mechanical, electrical, civil, landscaping and interior design and construction
supervision services." The agreement also contained an arbitration provision stating that all
claims, disputes, and other matters in question would be decided by AAA arbitration under the
Construction Industry Rules.
On July 22, 2004, Baumgardner sent a letter to the Developers demanding payment for
services rendered in the amount of the $210,871.08. The amount was based upon the
professional fees owed for services completed ($200,829.60) plus a 5% termination expense
($10,041.48) as specified in the Parties' Agreement. The Developers, however, refused to pay
any of the money owed under the Agreement. Consequently, Baumgardner filed a demand for
NO. 07-1509 CIVIL
Arbitration with the AAA under the Construction Industry Arbitration Rules. The nature of the
arbitration claim is explained in the demand for arbitration:
This is a breach of contract claim. Claimant,
James E. Baumgardner ("Baumgardner") is an
Architect who entered into a written agreement
with Respondents, Brambles Arms Associates, a
Pennsylvania Limited Partnership ("Brambles
Arms") and Thomas W. Gaughen ("Gaughen') its
general partner, for the design of an apartment
complex in Hampden Township, Cumberland
County. Brambles Arms and Gaughen terminated
the Project because of a purported inability to
obtain financing for the Project from the
Department of Housing and Urban Development
("HUD") that was insured by the Federal Housing
Administration ("FHA"). Despite the fact that the
design documents were approved by HUD and a
Firm Commitment issued to Owners, Brambles
Arms and Gaughen continue to refuse to pay
Baumgardner for the professional services
performed under the Parties' Agreement.
Baumgardner demands payment of the principal
amount of $210,871.08 under the contract plus
interest, penalties, attorneys fees, and costs as
authorized by Pennsylvania's Contractor
Subcontractor Payment Act, 73 P.S. § 501 et seq.
(Baumgardner's Demand for Arbitration, Nature of Dispute p. l) (emphasis added). Gaughen
responded by letter demanding that he be dismissed from the arbitration proceedings. He argued
that he knew "of no state that allows a General Partner of a Limited Partnership to be named
individually in an action, absent criminal fraud." Baumgardner responded by citing
Pennsylvania law to the effect that a general partner of a limited partnership is individually liable
for all debts and obligations of the partnership. See Pa.C.S.A. 8533(b). Gaughen was never
dismissed from the AAA arbitration and both respondents were subsequently represented in the
arbitration proceedings.
2
NO. 07-1509 CIVIL
On November 7, 2006, the arbitrator entered an Interim Award granting Baumgardner all
relief that was sought in his demand for arbitration and retained jurisdiction to allow the
submission of evidence concerning Baumgardner's attorney's fees and other costs. On February
8, 2007, the arbitrator issued a final award including attorney's fees and costs in the amount of
$68,412.71. The final award was served on the parties on February 8, 2007. The Arbitrator's
Final Award states that "Respondents shall promptly pay to Claimant the sum of THREE
HUNDRED EIGHTY-FOUR THOUSAND ONE HUNDRED FIFTEEN AND FORTY-FOUR
ONE HUNDREDTHS DOLLARS ($384,115.44), plus interest, which is inclusive of the award
of attorneys fees and the amounts specified in the Tribunals November 7, 2006 Interim
Award...." (emphasis added). Neither party filed an appeal of the arbitrator's decision.
Baumgardner filed a petition to confirm the arbitrator's final award. Respondents Brambles
Arms and Gaughen filed an Answer to the Petition to Confirm the Award opposing the entry of
any judgment against Gaughen.
The parties' agreement specifically provided that the arbitration would be under the rules
of the American Arbitration Association and that any award would be "final, and judgment may
be entered upon it." As such, the arbitration undergone by the parties was arbitration at common
law. See Runewicz v. Keystone Insurance Co., 383 A.2d 189 (Pa. 1978). Under the Judicial
Code, a Court of Common Pleas has a mandatory statutory duty to confirm the Arbitrator's
award in cases of common law arbitration. The standard of review for common law arbitration is
exceptionally limited:
The award of an arbitrator in a nonjudicial
arbitration which is not subject to (statutory
arbitration) or [to] a similar statute regulating
nonjudicial arbitration proceedings is binding and
3
NO. 07-1509 CIVIL
may not be vacated or modified unless it is clearly
shown that a party was denied a hearing or that
fraud, misconduct, corruption or other irregularity
caused the rendition of an unjust, inequitable or
unconscionable award.
Sage v. Greenspan, 765 A.2d 1139, 1142 (Pa. Super. 2000). The arbitrators are the final arbiters
of both law and fact, and the award is not reviewable for a mistake of either. Id.
42 P.S. 7342(b) addresses the issue of confirming the final awards of arbitrators. It
provides, in relevant part, as follows:
(b) Confirmation and judgment.-On application
of a party made more than 30 days after an award
is made by an arbitrator under § 7341 (relating to
common law arbitration) the court shall enter an
order confirming the award and shall enter a
judgment or decree in conformity with the order...
42 Pa.C.S. § 7342(b). The court in U.S. Claims, Inc. v. Dougherty, 914 A.2d 874, 877 (Pa.
Super. 2006), stated that § 7342(b) "require[s] that any challenge to the arbitration award be
made in an appeal to the Court of Common Pleas, by filing a petition to vacate or modify the
arbitration award within 30 days of the date of the award." Furthermore, the court stated that a
"party must raise alleged errors in the arbitration process in a timely petition to vacate or modify
the arbitration award or the claims are forever waived." Id. The court specifically says that any
challenge to the arbitration process as a whole must be raised in a timely petition to vacate or
modify the arbitrator's award. Id. Furthermore, the court reasoned that a "challenge to the
validity of an arbitration award asserted for the first time in opposition to a petition to confirm is
procedurally inadequate to preserve claims for judicial review." Id.
Thus, we conclude that we are under a mandatory statutory duty to confirm the
arbitrator's award sub judice. Moreover, the identity of the parties is clear with judgment being
4
NO. 07-1509 CIVIL
properly entered against both respondents including Gaughen. His liability is, in any event,
consistent with Pennsylvania law with regard to general partners.
ORDER
AND NOW, this '? day of August, 2007, it is ordered and decreed that the award
of the arbitrators entered between the parties and dated February 8, 2007, is hereby
CONFIRMED, which award was in the aggregate amount of $384,115.44 plus interest.
Accordingly, judgment is entered in favor of James Baumgardner and against Brambles
Arms Associates, L.P. and Thomas W. Gaughen in the amount of $384,115.44 plus interest of
1% per month pursuant to 73 P.S. 505(d) plus penalty of 1% per month pursuant to 73 P.S.
512(a), both from March 13, 2007 until the date of this judgment, together with interest at the
legal rate from the date of this judgment forward.
BY THE COURT,
Anthony Potter, Esquire
For the Petitioner
Victor Stabile, Esquire
For the Respondents
: rlm
5
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
JAMES E. BAUMGARDNER
V.
Petitioner,
BRAMBLES ARMS ASSOCIATES, L.P. and
THOMAS W. GAUGHEN, Individually
Respondents.
No.07-1509
PRAECIPE TO ENTER JUDGMENT
TO THE PROTHONOTARY:
Please enter and index the Judgment against Respondents, Brambles Arms Associates,
L.P. and Thomas W. Gaughen in the amount of $384,115.44 plus interest of 1% per month
pursuant to 73 P.S. 505(d) plus penalty of 1% per month pursuant to 73 P.S. 512(a), both from
March 13, 2007, until the date of Judgment, together with interest at the legal rate from the date
of the Judgment until the date of payment by Brambles Arms Associates, L.P. and Thomas W.
Gaughen.
POWELL, TRACHTMAN, LOGAN,
CARRLE & LOMBARDO, P.C.
By
Anthony . Potter
I.D. #74%3
114 N. Second Street
Harrisburg, PA 17101
(717) 238-9300
Dated: August 14, 2007 Attorneys, for James E. Baumgardner
HB:57019v] 4059-03
w
-rt
w?
o
c
W
.%b..
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
JAMES E. BAUMGARDNER
Petitioner,
V. No.07-1509
BRAMBLES ARMS ASSOCIATES, L.P. and
THOMAS W. GAUGHEN, Individually
Respondents.
NOTICE
TO: Brambles Arms Associates, L.P. Thomas W. Gaughen
c/o Victor P. Stabile, Esq. c/o Victor P. Stabile, Esq.
Dilworth Paxson LLP Dilworth Paxson LLP
112 Market Street, 8th Floor 112 Market Street, 8th Floor
Harrisburg, PA 17101 Harrisburg, PA 17101
Pursuant to Pa. R.C.P. 236 of the Supreme Court of Pennsylvania, you are hereby
notified that a Judgment has been entered against you in the above proceeding as indicated. A
Money Judgment in the amount of $422,526.94 was entered against Brambles Arms Associates,
L.P. and Thomas W. Gaughen.
PROTHONOTARY
CURT LONG
If you have any questions concerning the above please contact Anthony S. Potter:
D. No. 75903
Anthony S.Z otter, Esquire
Powell Tr chtman Logan Carrie & Lombardo, P.C.
114 Norldi Second Street
Harrisburg, PA 17101
Phone: (717) 238-9300
HB:57013v 1 4059-03
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
PRAECIPE FOR WRIT OF EXECUTION
Caption: ? Confessed Judgment
James E. Baumgardner ® Other
v. 07-1509
Brambles Arms Associ_ates,L.P : File No.
and Thomas W. Gaughen, Amount Due $384,115.44
Individually : Interest$38,411.50 (from 3/13/07 to
Atty's Comm
Costs
TO THE PROTHONOTARY OF THE SAID COURT:
The undersigned hereby certifies that the below does not arise out of a retail installment sale,
contract, or account based on a confession of judgment, but if it does, it is based on the appropriate original
proceeding filed pursuant t0 act 7 of 1966 as amended; and for real property pursuant to Act 6 of 1974 as
amended.
Issue writ of execution in the above matter to the Sheriff of _ Cumberland County
County, for debt, interest and costs, upon the following described property of the defendant (s)
Cash, personal property, business property, computers at
TWG Real Estate Management., 2133 Market St., Camp Hill, PA, 17.031
anct b5 uscany Court, Camp Hill, PA, 17011
PRAECIPE FOR ATTACHMENT EXECUTION
Issue writ of attachment to the Sheriff of Cumberland County, for debt, interest
and costs, as above, directing attachment against the above-named garnishee(s) for the following property
(if real estate, supply six copies of the description; supply four copies of lengthy personalty list)
Attach d are Interrogatories for Service upon
Garnishees.'- Serve Garnishees at 5006 Trindle Rd., Suite 200,
a, Mec?lanpicpsXSUrg; depfAdantls40 in th 0 pan sio2n,cu3st3ody_arket oStthesaidgCamp 1 armss ee(Sill, PA,
? (Indicate) Index this writ against the garnishee (s) as aMa lis pendens against real estate of the 17 011
defendant(s) described in the attached exhibit. 01'?_
Date August 14, 2007 Signature:
;5?, lyr Dc.,,b
/'CXCfs}? 1QWilhovS?' HS,?/Soc-:,/.5 LP e1
?rGM??S ?wnl?ousd f?ssou•c?J? 1//
Print Name: Anthony?G. Potter
owe rac man, et al
Address: 114 N. Second St.
Harrisburg, PA 17101
Attorney for: James E. Baumgar ner
Telephone: (717) 236-930-0
Supreme Court ID No: 7 5 9 0 3
Dl?)
9J
V
f
r
.,. " x
CS r-a
C
-E5
c rip
r' f
(fir i',`
J
, ? A.+
W
.w
MICHAEL G. TRACHTMAN
PAUL A. LOGAN*°?
GUNTHER O. CARRLE*
BRUCE D. LOMBARDO
JOSEPH P. TRABUCCO, 111o
NEIL P. CLAIN, JR.*
JONATHAN K. HOLLIN
DAVID T. BOLGER
RICHARD J. DAVIES*o
STEVEN G. BARDSLEY*
FRANK S. NOFER*
ANTHONY S. POTTER-
FREDERICK M. BREHM*
STEPHEN D. MENARD*
FRANCIS G. LAROCCA
DENNIS P. HERBERT*
GEORGE T. REYNOLDS*
PAMELA J. DEVINE*
MARY J. PEDERSEN*
JENIFER L. SUPLEE*
JAMES S. BAINBRIDGE*
KEVIN K. CARTON, JR. *
DIRK M. SIMPSON, LL.M. (TAXATION)*
CHRISTOPBERJ. AMENTAS*
LISA R. MARONE*
MICHAEL J. HOOK
ANDREW J. FUGA*
*ALSO ADMITTED IN NJ
-ALSO ADMITTED IN MD
? ALSO ADMITTED IN DE
a ALSO ADMITTED IN NY
VIA HAND DELIVERY
Prothonotary
Cumberland County
1 Courthouse Square
Carlisle, PA 17013
UNNI OFFICES
POWELL TRACHTMAN LOGAN OF CG
/ / RALPH B. POWEL
OWEI.L, JR.
CARRLE & LOMBARDO RICHARD MACHARD T. A .. ABELL
ELL
A PROFESSIONAL CORPORATION RICHARD L. BUSH
MARSHA E. FLORA*
114 NORTH SECOND STREET 475 ALLENDALE ROAD
HARRISBURG, PA 17101 SUITE 200
KING OF PRUSSIA, PA 19406
(717) 238
9300 (610) 354-9700
- FAX (610) 354-9760
DIRECT DIAL
FACSIMILE (717) 238-9325 SUITE 350
APOTTER@a POWFLC rRACHTMAN.COM 1814 EAST ROUTE 70
wNx7w
POWF
LLTRACHTMAN
COM CHERRY HILL, NJ 08003
.
.
. (856) 663-0021
FAX (856) 663-1590
August 14, 2007
PLEASE REPLY TO:
HARRISBURG
Re: Baumgardner v. Brambles Arms Associates, LP and Thomas W. Gaughen
individually-, Docket No.2007-01509 (Cumberland County)
Dear Prothonotary:
Enclosed is a Praecipe for Entry of Judgment and a Notice to Defendants pursuant to Pa. R.C.P.
236 in the above-referenced matter. Also enclosed is a check made payable to the Cumberland County
Prothonotary in the amount of $14.00 for entry of the Judgment.
Also enclosed is a Praecipe for a Writ of Execution directed to the Sheriff of Cumberland
County. A check in the amount of $24.50 made payable to the Prothonotary for the writ of execution
is enclosed. Kindly issue the writ of execution directing the Cumberland County Sheriff to serve and
levy Respondents Brambles Arms Associates, LP and Thomas W. Gaughen's personal and business
property located in Cumberland County at the following addresses:
TWG Real Estate Management Services Thomas W. Gaughen
2133 Market Street 55 Tuscany Court
Camp Hill PA 17101 Camp Hill, PA 17101
HB:57022v 1 4059-03
Prothonotary
August 14, 2007
Page 2
The Writ of Execution should also be directed to the following three garnishees: (1) Waggoner
Frutiger & Daub, CPA; (2) Foxcroft Townhouse Associates, LP; and (3) Brambles Townhouse
Associates, LP. Service on the garnishees may be perfected at Waggoner Frutiger & Daub, CPA 5006
Trindle Road Suite 200 Mechanicsburg, PA 17050. There are two sets of the Garnishee Interrogatories
for service upon each garnishee.
Finally, enclosed are Sheriff's instructions for service of the writ of execution upon the
defendants and three garnishees along with a check in the amount of $150.00 made payable to
Cumberland County Sheriff's office.
If you have any questions or require additional information, please call me.
Sincerely yours,
Anthon . Potter
ASP:mak
Enclosures
HB:57022v14059-03
MICHAEL G. TRACHTMAN
PAUL A. LOGAN"
GUNTHER O. CARRLE*
BRUCE D. LOMBARDO
JOSEPH P. TRABUCCO, 1110
NEIL P. CLAIN, JR.*
JONATHAN K. HOLLIN
DAVID T. BOLGER
RICHARD J. DAMES*o
STEVEN G. BARDSLEY*
FRANK S. NOFER*
ANTHONY S. POTTER'
FREDERICK M. BREHM*
STEPHEN D. MENARD*
FRANCIS G. LAROCCA
DENNIS P. HERBERT*
GEORGE T. REYNOLDS-
PAMELA J. DEVINE*
MARY J. PEDERSEN*
JENIFER L. SUPLEE*
KEVIN K. CARTON, JR.*
DIRK M. SIMPSON, LL.M. (TAXATION)"
CHRISTOPHER J. AMENTAS*
LISA R. MARONIE*
MICHAEL J. HOOK
ANDREW J. FUGA*
DAVID M. ABIJANAC, JR.
c A^rsITTEi .. *?J
-ALSO ADMITTED IN MD
1 ALSO ADMITTED IN DE
-ALSO ADMITTED IN NY
Via Facsimile and U.S. Mail
Curt Long, Prothonotary
Cumberland County
1 Courthouse Square
Carlisle, PA 17013
L: Xv(VI ICES
POWELL
TxACIITMAN
LOGAN COUNSEL
G
,
/
! RALP
H B.
POWELL, JR.
CAR1L it Jul l E ?^ r? T !` _ _ BARU" ^l) MA RI (CCHARHAR D B T . . A ABELL
ELL
A 1'FUFESSIONAL CORPORATION RICHARD L. BUSH
MARSHA E. FLORA-
114 NORTH SECOND SI'RI FT 475 ALLENDALE ROAD
HARRISBURG, PA 17101 SUITE 200
KING of P
RUSSIA, PA 19406
(77 7) 235-9300 (610) 354-9700
FAX (610) 354-9760
DIRECT DIAL
FACSIMILE (717) 235-9325 SUITE 350
APO'I-CER@POIX%JiI,L,1'RACH'CD1AN .COA1 1814 EAST ROUTE 70
W'IC' W. POYI' I?T J
TRACIII?1AN
CONI CHERRY HILL, 08003
.
. (856)663-00 0021
FAX (856) 663-1590
August 16, 2007
PLEASE REPLY To:
IARRISBCRG
Re: Baumgardner v. Brambles Arms Associates and Thomas W. Gaughen; Docket
No. 2007-01509
Dear Mr. Long:
On Tuesday, August 14, 2007, my office filed a praecipe for entrance of judgment and a
praecipe for issuance of a writ of execution directed to respondents and three garnishees in the above-
referenced matter. The parties have reached a settlement agreement in principle. Please cease
processing the writ of execution, do not deliver it to the sheriff s office, and return the writ and
garnishee interrogatories to me in the envelope which I will mail to you today.
Sincerely yours,
nthony S . P lcrtter
ASP:mak
?p
cc: Vic Stabile r OqIO c ?
P?.oc? s 'ITT'
L4) rif f
3q0
HB:57037v 1 4059-03 D4
WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
N007-1509 Civil
CIVIL ACTION - LAW
TO THE SHERIFF OF CUMBERLAND COUNTY:
To satisfy the debt, interest and costs due JAMES E. BAUMGARDNER Plaintiff (s)
From BRAMBLES ARMS ASSOCIATES L.P. AND THOMAS W GAUGHEN INDIVIDUALLY
(1) You are directed to levy upon the property of the defendant (s)and to sell CASH, PERSONAL
PROPERTY, BUSINESS PROPERTY, COMPUTERS AT TWG REAL ESTATE
MANAGEMENT, 2133 MARKET ST., CAMP HILL, PA 17011 AND 55 TUSCANY COURT,
CAMP HILL, PA 17011.
(2) You are also directed to attach the property of the defendant(s) not levied upon in the possession
of WAGGONER FRUTIGER & DAUB, FOXCROFT TOWNHOUSE ASSOCIATES, LP, AND
BRAMBLES TOWNHOUSE ASSOCIATES, LP
GARNISHEE(S) as follows:
ATTACHED ARE INTERROGATORIES FOR SERVICE UPON GARNISHEES. SERVE
GARNISHEES AT 5006 TRINDLE RD., SUITE 200, MECHANICSBURG, PA 17050 AND 2133
MARKET ST, CAMP HILL, PA 17011
and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from
paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant
(s) or otherwise disposing thereof;
(3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession
of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a
garnishee and is enjoined as above stated.
Amount Due$384,115.44 L.L.$.50
Interest $38,411.50 (FROM 3/13/07 TO 8/9/07)
Atty's Comm % Due Prothy $2.00
Arty Paid $119.50 Other Costs
Plaintiff Paid
Date: August 14, 2007
(Seal)
Curtis R. Long, Prothonotary
By:
Deputy
REQUESTING PARTY:
Name ANTHONY S. POTTER, ESQ.
POWELL TRACHTMAN, ET. AL
Address: 114 N. SECOND ST.
HARRISBURG, PA 17101
Attorney for: PLAINTIFF
Telephone: (717) 238-9300
Supreme Court ID No. 75903
w
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
JAMES E. BAUMGARDNER
Petitioner, :
V. No. 07-1509
BRAMBLES ARMS ASSOCIATES, L.P. and
THOMAS W. GAUGHEN, Individually
Respondents.
PRAECIPE TO SATISFY JUDGMENT
TO THE PROTHONOTARY (Attention Laura):
Please mark the Judgment entered against Brambles Arms Associates, L.P. and Thomas
W. Gaughen satisfied.
Dated: September 4, 2007
POWELL, TRACHTMAN, LOGAN,
CARRLE & LOMBARDO, P.C.
By
Anthon S. Potter
I.D. 5903
114 N. Second Street
Harrisburg, PA 17101
(717) 238-9300
Attorneys for James E. Baumgardner
HB:57068v1 4059-03
CERTIFICATE OF SERVICE
AND NOW, on September 4, 2007, I hereby certify that I have served a true and correct
copy of the within Praecipe to Satisfy Judgment upon the following person via first class mail.
Victor P. Stabile, Esq.
Dilworth Paxson LLP
112 Market Street, 8' Floor
Harrisburg, PA 17101
nthony S. otter
HB:56695vl 4059-03
0
* -
!?
:.._ r
? n
ni
r
.? C)
?^
2-1
?Vn
YR,