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Item 6G AffidavitsCase 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 22 of 73 PagelD 231 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION Excel Southlake I LP, Plaintiff, v. Woodmont Southlake, L.P., Herschman Architects, Inc., Cates -Clark & Associates, LLP and Tolunay-Wong Engineers, Inc., Defendants. § § § § § § § § Civil Action No. 4:15-cv-008840 A}FWWAVIT OF RONALD F. REED THE STATE OF TEXAS § § COUNTY OF DALLAS § BEFORE ME, the undersigned authority, on this day personally appeared Ronald F. Reed, who being by me duly sworn on oath deposed and said: I. "My name is Ronald F. Reed, P.E. 1 am over the age of twenty-one (21) years, 1 have never been convicted of a felony, and I am competent to make this affidavit. I have personal knowledge of the matters contained in this affidavit, and they are true and correct. 2. This affidavit is submitted pursuant to the requirements of TEXAS CIVIL PRACTICE AND REMEDIES CODE § 150.002, with respect to the professional engineering services provided by Tolunay-Wong Engineers, Inc. ("TWE") in the design and construction of the Southlake Park Village (the "Project"), an upscale shopping center located at 1065 East Southlake Boulevard, Southlake, Tarrant County, Texas (the "Center"). 3. I am a licensed professional engineer in the state of Texas, i am competent to testify, and 1 am actively engaged in the practice of engineering. A true and correct copy of my resume is attached hereto as Exhibit A, and is incorporated herein by reference for all purposes. 4. Based on my research, experience in the industry, and review of the documents identified in the attached Exhibit B (the "Project Documents"), TWE engaged in, and was retained on the Project, to perform geotechnical engineering services including, but not limited to: (a) a field program consisting of the exploration of subsurface conditions at the Center utilizing soil test borings; (b) laboratory testing; and (c) preparation of a report utilizing the information collected during the field program and laboratory services and providing AFFIDAVIT OF RONALD F. REED Page-1- -1- Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 23 of 73 PagelD 232 geotechnical design and construction recommendations for suitable foundation systems and pavement sections for the Center (collectively, the "TWE Services"). 5. As shown in my resume, Exhibit A, 1 am licensed to practice engineering, and have, for the past 35 years, been actively engaged in providing geotechnical engineering for clients similar in nature and geographic location to the Project. 6. Based on my education and professional experience, 1 have personal knowledge of the acceptable standards for the practice of engineering in the state of Texas and the greater Southlake area, which was the task to be performed by TWE on this Project. 7. 1 have also reviewed the September 26, 2013 contract between TWE and Excel Southlake 1 LP, as assignee of Woodmont Southlake, L.P., in which TWE agreed to "to act in accordance with the standard of skill and care of the reasonably prudent for a registered Engineer practicing in the Dallas / Fort Worth metropolitan area." 8. 1 have reviewed the documents identified in the attached Exhibit B relating to the Project and the TWE's Services in this matter. 9. Based on my education, experience, and a review of the Project Documents, it is my professional opinion that TWE, through its acts, errors or omissions, failed to perform the TWE Services in accordance with the acceptable standards for the practice of engineering in the Dallas / Fort Worth metropolitan area. 10. TWE incorrectly evaluated the potential for movement associated with moisture change in the subsurface soils. TWE relied on empirical relationships between classification tests and potential for activity without site specific confirmation tests. This resulted in the conclusion that "We do not consider shrink/swell potential to be a critical design concern for this project." (See last sentence of Page 5-2, Project No. 13.63.023, Final Report (Revision I.) 11. By providing an incorrect estimate for the potential for soil movement, TWE failed to provide appropriate recommendations for the foundations and remedial earthwork to reduce movement. 12. As a result of the actions, errors, or omissions of TWE described herein, TWE failed to provide geotechnical design and construction recommendations for suitable foundation systems and pavement sections for use in the construction of the Center "in accordance with the standard of skill and care of the reasonably prudent for a registered Engineer practicing in the Dallas / Fort Worth metropolitan area." 13. Based on TWE's failure to provide acceptable geotechnical design arid construction recommendations for suitable foundation systems and pavement sections for use in the construction of the Center, it is my opinion that TWE's actions, errors and omissions are a producing cause of (1) the deficient designs provided for the buildings at the Center; (2) the actual damage and distress to Buildings A, B, C, D, E and E2, and (3) the expected future heaving of slabs, foundations and pavements at the Center. AFFIDAVIT OF RONALD F. REED Page - 2 - -2- Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 24 of 73 PagelD 233 14. These acts, errors, and/or omissions show that TWE failed to meet the applicable work product standards of design professionals, 15. My investigation is ongoing, and further examination of the Project may lead to the discovery of additional negligent acts, errors, and/or omissions in the work performed by TWE. As a result, I reserve the right to supplement and/or expand my opinions and conclusions with respect to the performance of TWE, SUBSCRIBED AND SWORN TO before me by the said Sidirkon this the N day of Apri l 2016, to certify which witness my hand and seal of office. itk{.�.'Z�iLyy�t6ayv NO RY PUBLIC IN AND FOR/ THE STATE OF TEXAS My Commission Expires: 01-1/-zev7 1 "„P;°?%An;elaPalmer.Vaarhni ` "a,iri , Commission Expires' xpires v!•,1�^4' 03-31-2017 t AFFIDAVIT OF RONALD F. REED Page-3- Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 25 of 73 PagelD 234 EXHIBIT A REED AFFIDAVIT Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 26 of 73 PagelD 235 REED EnCIf1EE RInG RONALD F. REED, P.E. EXPERIENCE Hca o u1" 1988 - Present Reed Engineering Group, Inc. Dallas, Texas President, Principal Engineer Serves as project and principal engineer for numerous geotechnical and geological projects, including a 450,000 sf facility for Sherwin Williams; aircraft maintenance hangars at Dallas/Fort Worth International airport for American Airlines; an 850,000 sf facility for Blockbuster Video; 22 to 30 story high-rise structures in Dallas and Houston; and levee projects for the Cities of Garland and Arlington. Specialized studies include: slope stability analysis on the criblock walls at Fair Park; rock slope analysis along White Rock Creek; slope analysis on a distress marine dock for the Port of Orange, Orange, Texas; and ground water movement in both saturated and unsaturated conditions. 1978 - 1988 Rone Engineers, Inc. Dallas, Texas Advanced from Staff Engineer to Senior Vice President As Senior Vice President managed 16 personnel and was responsible for hiring, training, engineering. Managed profit and loss for the Dallas geotechnical engineering division, with annual sales in excess of 1.2 million dollars. Wrote over 1,500 investigative reports and supervised over 4,000 projects of all types including department stores; shopping centers; highways; bridges; airport pavements; high-rise buildings; landfills; and dams. Specialties include: distress analysis; use of soil/structure interactive programs; definition/mapping of unconfined groundwater; and in-situ testing methods. Developed the trench safety program for the Trinity River Authority of Texas, and served on the panel which developed the City of Dallas' trench safety program. 1976 - 1978 Pittsburgh Testing Laboratory Dallas, Texas Engineer In Training Conducted basic soil investigations and foundation analyses on small to medium sized projects in the Dallas/Fort Worth area. Supervised construction inspection for South Texas nuclear power plant in Bay City, Texas. AWARDS John B. Hawley Award for Technical Paper of Outstanding Merit. Presented by the American Society of Civil Engineers, Texas Section. 1994. Outstanding Young Engineer of the Year. Presented by the Texas Society of Professional Engineers. 1983. 1 l Geotechnical Engineering Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 27 of 73 PagelD 236 A'.CIE o c noon c.caInc a. 6=1 iJ LJP RONALD F. REED, P.E. (Continued) PUBLICATIONS "Allowable Bearing Pressure Within Unsaturated Soils" Reed, RF., Presented to Texas Section, ASCE, March, 2012. "Are HOV Lanes Good Public Policy?" Reed, R.F., Presented to Texas Section, ASCE, February, 2012. "Alternative Subgrade Design for Pavements in Expansive Soils" Reed, RF., Presented to Texas Section, ASCE, April, 2011. "Lessons Learned from Distress of Foundations on Expansive Clays in the Active Zone" Reed, RF., Tand, K.E., Vipulanandan, C., Presented to ASCE, "Geo -Frontiers 2011 ", Dallas, Texas, March, 2011. "Expert or Litigation `Hit -Person '? " Reed, R.F., Fall, 2010, Proceedings of ASCE Texas Section Meeting, El Paso, Texas. "PTI Design Procedure, Why Should We Care?" Reed, R.F., Spring, 2010, Proceedings of ASCE Texas Section Meeting, Austin, Texas. "Predicting Soil Suction Profiles Using Prevailing Weather." Reed, R.F., Fall, 2009, Proceedings of ASCE Texas Section Meeting, Houston, Texas. "Observed Soil Suction Profiles Within North Texas." Reed, R.F., Spring, 2009, Proceedings of ASCE Texas Section Meeting, South Padre Island, Texas. "Observations on the PTI 3`d Edition Design Procedure." Reed, R.F., Fall, 2008, Proceedings of ASCE Texas Section Meeting, Dallas, Texas. "Observations on the Measurement and Use of Soil Suction." Reed, R.F., Spring, 2007. Proceedings of ASCE Texas Section Meeting, Tyler, Texas. "Altemative Earthwork Procedure for Expansive Soils." Reed, R.F., 2006. ASCE Specialty Conference, Phoenix, Arizona. "Effect of Environmental Changes on Depth of the Active Zone." Reed, R.F., 2005. Proceedings of ASCE Texas Section Meeting, El Paso, Texas. "The Role of Soil Suction in the Performance of Clay Fill." Reed, R.F. and Pandey, K.K., 2003. Proceedings of ASCE Texas Section Meeting, Dallas, Texas. "Alternative Earthwork Procedure for Expansive Clay." Reed, R.F., 2002. Proceedings of ASCE Texas Section Meeting, Waco, Texas. "Time Related Heave Observations and Implications on Current Heave Prediction Models." Woodworth, M.G. and Reed, R.F., 2000. Proceedings of ASCE Texas Section Meeting, El Paso, Texas. "Analysis of Clay Fill Using X -Ray Technique." Phipps, J.F. and Reed, R.F., 2000. Proceedings of ASCE Texas Section Meeting, El Paso, Texas. 2 Geotechnical Engineering Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 28 of 73 PagelD 237 RGEO Cn1611lC E Rl1"lG G Pg01Jts• RONALD F. REED, P.E. (Continued) "Prediction of Heave Using `Effective' Stress." Reed, R.F., 2000. Advances in Unsaturated Geotechnics, Proceedings of Sessions of Geo -Denver, ASCE, Geotechnical Special Pubilication No. 99. "Impact of Climatic Variation on Design Parameters for Slab on Ground Foundations in Expansive Soils." Reed, R.F. and Kelley, M., 2000. Advances in Unsaturated Geotechnics, Proceedings of Sessions of Geo -Denver, ASCE, Geotechnical Special Pubilication No. 99. "Evaluation of Pile Load Test in the Beaumont Formation." Reed, R.F. and Pandey, K.K., 1999. Proceedings of ASCE Texas Section Meeting, Midland, Texas. "Prediction of Heave Using `Effective' Stress." Reed, R.F., 1997. Proceedings of ASCE Texas Section Meeting, Arlington, Texas. "Post -Construction Effects of Pre -Existing Trees." Reed, R.F and Phipps, J., 1996. Proceedings of ASCE Texas Section Meeting, San Antonio, Texas. "Application of Soil Suction in Dallas/Fort Worth." Reed, R.F and Kelley, M., 1995. Proceedings of ASCE Specialty Conference. "Soil Suction Application in Geotechnical Engineering Practice." San Diego, California. "Application of Soil Suction in Dallas/Fort Worth." Reed, R.F. and Kelley, M., 1995. Proceedings of ASCE Texas Section Meeting. Waco, Texas. "Comments on PTI Design Criteria." Reed, R.F. and Kelley, M., 1994. Proceedings of ASCE Texas Section Meeting. Lubbock, Texas. "Is it Time to Get the Cities Involved?" Reed, R.F., 1994. Proceedings of ASCE Texas Section Meeting. Corpus Christi, Texas. "Long Term Building Performance Over an Injected Subgrade." Reed, R.F., 1988. Proceedings of Second International Conference on Case Histories in Geotechnical Engineering. University of Missouri at Rolla. Rolla, Missouri. "Roadway Performance in an Expansive Clay." Reed, R.F., 1987. Transportation Research Record 1137, Soil Mechanics Considerations in Arid and Semi -Arid Areas. Transportation Research Board. "Evaluation of a Slide in Unweathered Shale." Reed, R.F., 1986. Proceedings of ASCE Texas Section Meeting, San Antonio, Texas. "Foundation Performance in an Expansive Clay Shale." Reed, R.F., 1985. Theory and Practice in Foundation Engineering. Proceedings of 38th Canadian Geotechnical Conference, Edmonton, Alberta, Canada. "Foundation Failures in Expansive Soils." Reed, R.F., 1983. Proceedings of ASCE Texas Section Meeting, Corpus Christi, Texas. "Swell Behavior of a Clay Shale." Reed, R.F., 1982. Proceedings of ASCE Texas Section Meeting, Fort Worth, Texas. "Wall Failure Analysis Using a Soil -Structure Interaction Approach: A Case History." Reed, R.F., 1981. Proceedings of ASCE Texas Section Meeting, Tyler, Texas. 3 Geotechnical Engineering Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 29 of 73 PagelD 238 FEEn encinccainO G el0 tJ F' RONALD F. REED, P E (Continued) REGISTRATION Registered Professional Engineer, State of Arkansas, #9933. Registered Professional Engineer, State of Louisiana, #28619. Registered Professional Engineer, State of Oklahoma, #18538. Registered Professional Engineer, State of Texas, #48174. PROFESSIONAL SOCIETIES AND ACTIVITIES Member, Texas Society of Professional Engineers Board Member - 1980 - 1989 President - 1988 - 1989 Member, National Society of Civil Engineers Member, American Society of Civil Engineers EDUCATION University of Texas at Arlington, Arlington, Texas Master of Science in Geotechnical Engineering, 1980 Syracuse University, Syracuse, New York Bachelor of Science, Magna Cum Laude, in Civil Engineering, 1975 State University of New York at Syracuse University, Syracuse, New York Bachelor of Science, Magna Cum Laude, in Forest Engineering, 1971 Short Course, Dallas, Texas "Grits/Stat - A Groundwater Information Tracking System." Environmental Protection Agency. 1992. Short Course, Dallas, Texas "Corrective Action for Containing and Controlling Groundwater Contamination." National Water Well Association. 1987. Short Course, Rolla, Missouri "Design of Earth and Rock Fill Dams." University of Missouri at Rolla. 1984. Short Course, Boulder, Colorado "Rock Mechanics." University of Colorado at Boulder. 1980. MILITARY SERVICE United States Army, Lieutenant, Infantry, 1971 - 1974 4 Geotechnical Engineering Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 30 of 73 PagelD 239 EXHIBIT B REED AFFIDAVIT Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 31 of 73 PagelD 240 EXHIBIT B Documents Reviewed: Geotechnical Investigation, Tolunay-Wong Engineers, Inc., Feb. 7, 2014, Project, 13.63.023/Final Report (Revision 1). Geotechnical Investigation, Tolunay-Wong Engineers, Inc., Jan. 2, 2012, Project 11.63.016. - Plan Sheets CS -1, Sp -1, S1.0, S1.1, S2.0, S2.1, S3.0, S3.1, S4.0, S4.1, S4.2, S4.3, P1.0, MP1.0, EF1.0, and EF1.1, Prepared by Herschman Architects, Inc., Park Village Shopping Center. Plan Sheets 05, C5.1, C5.2, C5.3, C6, C7, 08, C8.1, and C8.2, Prepared by Cates -Clark & Associates, L.L.P. for Park Village Shopping Center. Consultant Agreement between Woodmont Southlake, L.P. and Tolunay-Wong Engineers, Inc., dated September 26, 2013. Assignment of Agreement for Geotechnical Engineering Services, between Woodmont Southlake, L.P. and Excel Southlake I LP. Reed Engineering Group letter dated April 5, 2016 with Plates 1- 120 attached thereto. Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 32 of 73 PagelD 241 EXHIBIT 2 Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 33 of 73 PagelD 242 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION Excel Southlake 1 LP, Plaintiff, v. Woodmont Southlake, L.P., Herschman Architects, Inc., Cates -Clark & Associates, LLP and Tolunay-Wong Engineers, Inc., Defendants. § § § § Civil Action No. 4:15-cv-00884-0 AFFIDAVIT OF KENNETH D. FRANCH, AIA THE STATE OF TEXAS COUNTY OF COLLIN BEFORE ME, the undersigned authority. on this day personally appeared Kenneth D. Franch, who being by me duly sworn on oath deposed and said: I. "My name is Kenneth D. Franch, AIA, S.E., P.E. 1 am over the age of twenty-one (21) years, 1 have never been convicted of a felony, and ] am competent to make this affidavit. 1 have personal knowledge of the matters contained in this affidavit, and they are true and correct. 2. This affidavit is submitted pursuant to the requirements of TEXAS CIVIL PRACTICE AND REMEDIES CODE § 150.002, with respect to the professional architectural services provided by Herschman Architects, Inc. ("Herschman"), sealed and signed by Michael D. Crislip, Texas architect license number 17845, in the design and construction of the Southlake Park Village (the "Project"), an upscale shopping center owned by Excel Southlake I LP ("Excel") and located at 1065 East Southlake Boulevard, Southlake, Tarrant County, Texas (the "Center"). 3. 1 am a licensed professional architect in the state of Texas. I am competent to testify on, and 1 am actively engaged in, the practice of architecture. A true and correct copy of my resume is attached hereto as Exhibit A, and is incorporated herein by reference for all purposes. 4. Based on my research, training, experience in the industry, and review of the documents identified in the attached Exhibit B (the "Project Documents"), Herschman is engaged in, and was retained on the Project, to perform architectural services including, but not limited to: (a) coordination with the civil engineer on issues pertaining to site plan layout, building exterior design, sidewalks and utility connections; (b) coordination of engineering AFFIDAVIT OF KENNETH D. FRANCH, AIA Page - 1 - Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 34 of 73 PagelD 243 services (civil, structural, mechanical/electrical/plumbing ("MEP"), fire & life safety) in the construction drawings required for the Project; (c) development of testing and inspection requirements for the Project; (d) preparation of "Construction Documents" consisting of all drawings and specifications setting forth in detail the requirements for the construction of the Project, and (e) the construction administration of the construction of the Project (collectively, the "Herschman Services"). The Herschman Services in general, and the preparation of the Construction Documents in particular, constitute the practice of architecture. 5. As shown in my resume, Exhibit A, I am licensed to practice architecture and have, for the past 40 years, been actively engaged in providing architectural services for clients similar in nature and geographic location to the Project. 6. Based on my education and professional experience, I am knowledgeable in the same area of practice as Herschman. 1 have personal knowledge of the professional standards for the practice of architecture in the state of Texas and the greater Southlake area, which was the task to be performed by Herschman under its contract with Excel Southlake I LP on this Project. 7. 1 have reviewed the documents identified in the attached Exhibit B relating to the Project and Herschman's services in this matter and 1 investigated the Center on September 29, 2015, October 19, 2015, October 21, 2015, October 23, 2015, October 30, 2015, November 4. 2015, November 5, 2015, March 8, 2016. 8. 1 have also reviewed the September 11, 2013 contract between Herschman and Woodmont Southlake, L.P. that has been assigned to Excel Southlake f LP ("Excel") ("the "Hersehman Contract"). Under the Herschman Contract, Herschman delivered to Excel, as part of the Construction Documents, structural and foundation drawings that were prepared by a structural consultant, Thorson Baker, Associates ("Thorson Baker"). 9. Thorson Baker is identified in the Herschman Contract as t{erschman's consultant for structural engineering. Furnishing structural and foundation drawings as part of the architect's services using a structural engineering consultant is common practice and arose out of the architectural services that Herschman provided under the Herschman Contract. The Herschman Contract included providing Excel with a coordinated set of complete Construction Documents in order to construct the Project. The foundation design for the buildings at the Center is shown on drawings prepared by Thorson Baker as a consultant to Herschman and utilizes shallow conventional spread footings and slabs -on -grade. 10. Based on my education, experience, and a review of the Project Documents, it is my professional opinion that Herschman, through its acts, errors or omissions, failed to perform the Herschman Services in accordance with the acceptable standards for the practice of architecture in the state of Texas and the greater Southlake area. Specifically, the designs employed in the Construction Documents provided by Herschman failed to meet requirements for adequate drainage and control of surface water, and proper waterproof detailing at the slab/tilt panel intersection for the buildings at the Center: a. Based on the standards of care and skill of a reasonably prudent professional registered architect that is the subject of this affidavit, 1lerschman should have AFFIDAVIT 01? KENNETH D. FRANCH. AIA Page - 2 - Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 35 of 73 PagelD 244 recognized, but did not recognize, that the perimeter grading and drainage of the buildings will influence the performance of such structures by affecting the amount of water that is available to saturate the subgrade. The performance of slab -on -grade floor slabs rely in large part on proper subgrade preparation and site grading to maintain relatively constant moisture content of the soil around the perimeter of the foundation in order to minimize moisture -induced volumetric changes in the soil below the slab. b. The improperly designed drained landscape planters, allow for moisture to collect near the exterior and migrate below the building pad and become available to affect the underlying soils, thereby causing excessive heaving. For example, the construction details for the raised planters along the north wall were depicted in the architectural construction documents, Floor Plan, Sheet A1.1 and Wall Section 1, Sheet A4.4. The surface elevation of the planter was shown several feet above the interior slab elevation. The Bid/Permit set was dated February 21, 2014. Wall Section 1, Sheet A4.4 included a drain (no material or size described) at the bottom of the planter in the design detail and a waterproof membrane along the planter walls and the bottom of the planter bed were indicated. The structural Foundation Permit set, dated January 30, 2014, did not include planter designs. The available plumbing and civil permit drawings did not detail or reference planter drains. Architectural Revision 3, dated June 1 I, 2014, deleted the planter drain and added weeps (below grade) at the base of the planter wall in Wall Section 1, Sheet A4.4. However, Structural Revision 3, dated April 4, 2014, shows a planter drain (no material or size described) in Detail 9, Sheet S4.0. The available plumbing and civil permit drawings did not detail or reference planter drains. Based on my analysis, the deletion of the planter drain from the planter design resulted in drains not being installed at the time of construction which allowed irrigation and rain water to collect within the planters; due to an inadequate design of the slab and tilt -wall intersection, water from the planter penetrated through the exterior wall/foundation construction and entered the interior of Building A along the north wall; and the excessive moisture along the exterior wall contributed to moisture in the subsurface soils and caused the interior slab to heave. c. As another example, the surface level ofthe at -grade planter, located at the east elevation in the southeast comer between Building A and Building B, was constructed at the same level as the floor slab. Section C on Sheet A4.2, Revision 3, dated June 11, 2014, depicts a relation between the exterior grading and the interior slab elevation. Based on my analysis of the construction documents, the irrigation and rain water saturated the soils along the exterior wall. Due to the inadequate design of the slab and tilt -wall intersection, water intrusion occurred between the tilt -up panel and concrete slab joint, and the excessive moisture along the exterior wall contributed to heave of the subsurface soils and interior slab at the southeast corner of Building A and the northeast comer of Building 13. d. Similar design deficiencies exist in the design of the raised and at grade planters with resulting damage to Buildings C, D, E and E2. 11. As a result of the actions, errors, or omissions of Herschman described herein, Herschman failed to provide Construction Documents (including plans and specifications) for use by Excel in the construction of the Project in accordance with the standard of care and skill of a reasonably prudent professional registered architectural consultants practicing in the Southlake, Texas area. AFFIDAVIT OF KENNETH D. FRANCH, AIA Page - 3 - Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 36 of 73 PagelD 245 12. Based on Herschman's failure to provide acceptable Construction Documents (including plans and specifications) for the construction of the Project, it is my opinion that the buildings of the Center have been constructed with significant design defects. It is also my opinion that such defects have caused damage and distress to Buildings A, B, C, D, E and E2. 13. These acts, errors, and/or omissions show that Herschman failed to meet the applicable work product standards of design professionals. 14. My investigation is ongoing, and further examination of the Ccnter may lead to the discovery of additional negligent acts, errors, and/or omissions in the work performed by Herschman. As a result, I reserve the right to supplement and/or expand my opinions and conclusions with respect to the performance of Herschman. " (e neo 1 D.Frruta, aI I jS" JBSCRIBED AND SWORN TO before me by the said , on this the day of April 2016, to certify which witness my hand and seal of office. My Commission Expires: CCPCboia& a13kp KN E ST baraL BLIC IN AND FOR OF TEXAS JSNNIP,R STURCEVANT Noto'Y Pablla, State of Texos My Commission October 24, 2016 WOOS 1 AFFIDAVIT OF KENNETH D. FRANCH, AIA Page - 4 - Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 37 of 73 PagelD 246 EXHIBIT A FRANCH AFFIDAVIT Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 38 of 73 PagelD 247 NELSON F OR E N 5 I C Kenneth D. Franch, AIA, S.E., P.E. Senior Project Director kfran ch@n el sonfo rens i cs.co m www.nelsonforensics.com 1-877-850-8765 FIRM SERVICES Forensic Engineering, Forensic Architecture, Cost Estimating and Appraisal, Umpiring Disputes, Roofing System Assessment, Discovery Laboratory, Materials Science, Environmental Consulting, Fire Investigations, Evidence Storage, Animation and CAD. AREAS OF EXPERTISE Architectural and structural engineering services include master planning, building code and zoning analysis, programming, conceptualization of systems, design development, construction documents, bidding, construction administration and post -construction services. Forensic architectural and structural engineering services include comprehensive ordinance and building code review, construction administration including conceptualization budget estimating, contract scheduling, design review, reconstruction and repair documents. Building types include residential (single and multi -story), commercial, industrial facilities, public safety, justice facilities, governmental, religious, wellness, educational, and retail structures. EDUCATION Master of Science in Architectural Engineering/Structural Curriculum University of Illinois, Urbana -Champaign, IL - 1975 EXPERIENCE Bachelor of Architecture/Design Curriculum University of Illinois, Urbana -Champaign, IL - 1973 Over Forty Years in architectural and structural engineering design including conceptual design, construction documents, and contract administration; document review; and project performance administration. Forensic and analytical architectural and structural engineering project experience includes cause evaluation, support in litigation research, and remedial repair for structure damage due to construction defects and improper design. Experience also includes varied project delivery systems including Design/Bid/Build, Design Build, Construction Manager at Risk, Program Manager, and Integrated Project Delivery. Performed contract language and fee negotiations, with risk management assessment on all project delivery methods. Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 39 of 73 PagelD 248 Kenneth D. Franch, Professional Resume — Page 2 INDIVIDUAL LICENSURE Registered Architect: Colorado, Florida, Illinois, Oklahoma, Texas, and - Wisconsin. PROFESSIONAL MEMBERSHIPS AND ACTIVITIES PUBLICATIONS Licensed Professional Engineer in the States of Arkansas, Florida, Missouri, Oklahoma, and Texas. Licensed Structural Engineer in the State of Illinois. NCARB Certification. LEED®AP BD+C Certification. State licenses, registrations and/or certifications listed on this resume apply only to this professional as an individual. Nelson Architectural Engineers, Inc. dba Nelson Forensics, Nelson Forensics, LLC, Nelson Forensic Architects, PLLC, Nelson Forensic Engineers, Inc. and their subsidiaries or assigns offer firm professional services only in states where they are authorized. No offer of firm services is made in states where the previous entities are not authorized or registered. Member American Society of Civil Engineers (ASCE) Member American Institute of Architects (AIA) Member Structural Engineers Association of Texas (SEAoT) "Architectural Graphic Standards, 86, 96, and 10th Editions", Contributing Author Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 40 of 73 PagelD 249 EXHIBIT B FRANCH AFFIDAVIT Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 41 of 73 PagelD 250 ATTACHMENT B BUILDINGS A, B. and C: Architectural Drawings, prepared by Ilerschman Architects, Inc., 25001 Emery Road, Suite 400, Cleveland, Ohio 44128; titled PARK VILLAGE BUILDINGS A, B, C; Sheets CS -0 (Rev. #4, dated 07.21.2014; Rev. #4 foundation, dated 06.11.2014; Rev. #3, dated 06.11.2014), CS -1 (Rev. #5, dated 08.19.2014; Rev. #4, dated 07.21.2014; Rev. #4 foundation, dated 06.11.2014; Rev. #3, dated 06.11.2014; Rev. #3 (Building Foundation and Underground Plumbing/Electrical Work), dated 04.04.2014; Rev. #2, dated 04.11.2014; Rev. #1, dated 03.26.2014; Bid Permit, dated 02.21.2014), SP -1 (Rev. #2, dated 04.11.2014; Bid Permit, dated 02.21.2014), A1.0 (Rev. #2, dated 06.11.2014; Rev. #2, dated 04.11.2014; Rev. #1, dated 03.26,2014; Bid Permit, dated 02.21.2014), A1.1 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Rev. #1, dated 03,26.2014; Bid Permit, dated 02.21.2014), A1.2 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04,11.2014; Rev. #1, dated 03.26.2014; Bid Permit, dated 02.21.2014), A1.3 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Bid Permit, dated 02.21.2014), A1.4 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Bid Permit, dated 02.21.2014), A1.5 (Rev. #5, dated 08.19.2014; Rev. #4, dated 07.21.2014; Rev, #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Rev. #1, dated 03.26.2014; Bid Permit. dated 02.21.2014), AI.6 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Bid Permit, dated 02.21.2014), A1.7 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Rev. #1, dated 03.26.2014; Bid Permit, dated 02.21.2014), A1.8 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Rev. #1, dated 03.26.2014; Bid Permit, dated 02.21.2014), A1.9 (Rev. #2, dated 04.11.2014; Rev. #1, dated 03.26.2014; Bid Permit, dated 02.21.2014), A2.0 (Rev. #3, dated 06.11.2014; Bid Permit. dated 02.21.2014), A2.1 (Rev. #3, dated 06.11.2014; Rev, #2, dated 04.11.2014; Rev. #1, dated 03.26.2014; Bid Permit, dated 02.21.2014), A2.2 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Rev. #1, dated 03.20.2014; Bid Permit, dated 02.21.2014), A3,0 (Rev. #3, dated 06.11.2014; Bid Permit, dated 02.21.2014), 43,1 (Rev, #5, dated 08.19.2014; Rev, #4, dated 07.21.2014; Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Rev. #1, dated 03.26.2014; Bid Permit, dated 02.21.2014), A3.2 (Rev, #4, dated 07.21.2014; Rev. #3, dated 06.11.2014; Rev, #2, dated 04.11.2014; Rev. #1, dated 03.26.2014; Bid Permit, dated 02.21.2014), A3.3 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Rev. #1, dated 03.26.2014; Bid Permit, dated 02.21.2014), A3.4 (Rev. #4, dated 07.21.2014; Rev. #3, dated 06.11.2014; Bid Permit, dated 02.21.2014), A4.0 (Rev. #2, dated 04.11.2014; Bid Permit, dated 02.21.2014), A4.1 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Rev. #1, dated 03.26.2014; Bid Permit, dated 02.21.2014), A4.2 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Rev. #1, dated 03.26.2014; BW Permit, dated 02.21.2014), 44.3 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Bid Permit. dated 02.21.2014), A4.4 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Bid Permit, dated 02.21.2014), A4.5 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Bid Permit, dated 02.21.2014), A4.6 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04,11.2014; Bid Permit, dated 02.21.2014), A4.7 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04,11.2014; Rev. #1, dated 03.26.2014; Bid Permit, dated 02.21.2014). A4.8 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Rev. #1, dated 03.26.2014; Bid Permit, dated 02.21.2014), A4.9 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Bid Permit, dated Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 42 of 73 PagelD 251 02.21.2014), A4.10 (Rev. #2, dated 04.11,2014), A4.20 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Bid Permit, dated 02.21.2014), A4.21 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Rev. #1, dated 03.26.2014; Bid Permit, dated 02.21.2014), A4.22 (Rev. #2, dated 04.11.2014; Bid Permit, dated 02.21.2014), 41.23 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Rev. #1, dated 03.26.2014; Bid Permit, dated 02.21.2014), A4.24 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Bid Permit, dated 02.21.2014), A4.25 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Rev. #1, dated 03.26.2014; Bid Permit, dated 02.21.2014), A4.26 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04,11.2014; Bid Permit, dated 02.21.2014), A4.27 (Rev. #3, dated 06.11.2014; Rev, #2, dated 04.11.2014; Bid Permit, dated 02.21.2014), A4.28 (Rev. #2, dated 04.11.2014; Rev, #1, dated 03.26.2014; Bid Permit, dated 02.21.2014), A4.29 (Rev. #3, dated 06.11.2014; Rev. 112, dated 04.11.2014; Bid Permit, dated 02,21.2014), A.4.30 (Rev. #3, dated 06.11.2014), A4.40 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11,2014; Rev. #1, dated 03.26.2014; Bid Permit, dated 02.21.2014), A4.41 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Rev. #1, dated 03.26.2014; Bid Permit, dated 02.21.2014), A4.42 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04,11.2014; Bid Permit, dated 02.21.2014), A4.43 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Bid Permit, dated 02.21.2014), A4.44 (Rev. #2, dated 04.11.2014), A5.2 (Rev. #2, dated 04.11.2014), A6.0 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Bid Permit, dated 02.21.2014), A6.1 (Rev. #2, dated 04.11.2014; Rev. #1, dated 03.26.2014; Bid Permit, dated 02.21.2014), A6.2 (Rev. #5, dated 08.19.2014; Rev. #4, dated 07.21.2014; Rev. #2, dated 04.11.2014), A7.0 (Bid Permit, dated 02.21.2014), A7.1 (Bid Permit, dated 02.21.2014), A7.2 (Bid Permit, dated 02.21.2014), A7.3 (Bid Permit, dated 02.21.2014), A7.4 (Bid Permit, dated 02.21.2014). Structural Drawings, prepared by Thorson Baker and Associates, 3030 West Streetsboro Road, Richfield, Ohio 44286; titled PARK VILLAGE BUILDINGS A, B, C; Sheets 81.0 (Rev. #3, dated 04.04.14; Bid Permit, dated 02.21.2014), 51.1 (Rev. #3, dated 04.04.14; Bid Permit, dated 02.21.2014), 51.2 (Bid Permit, dated 02.21.2014), S2.0 (Rev. #3, dated 04,04.14), 52,1 (Rev. #3, dated 04.04.14), 53.0 (Rev. #3, dated 04.04.14), 54.0 (Rev. #3, dated 04.04,14), 54.1 (Rev. #3, dated 04.04.14), 54.2 (Rev. #3, dated 04.04.14), 54.3 (Rev. #3, dated 04.04.14), 55.0 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Bid Permit, dated 02.21.2014), 55.1 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Bid Permit, dated 02.21.2014), 56.0 (Rev. #3, dated 06.11.2014; Rev. #2, dated 04.11.2014; Bid Permit, dated 02,21.2014), 86.1 (Rev. 43, dated 06.11.2014; Rev. #2, dated 04.11.2014; Bid Permit, dated 02.21.2014), 57.0 (Rev. #2, dated 04.11.2014; Bid Permit, dated 02.21.2014), 87.1 (Bid Permit, dated 02.21.2014), 58.0 (Bid Permit, dated 02.21.2014). 58.1 (Bid Permit, dated 02.21.2014), S8.2 (Rev. #3, dated 04.04.14; Bid Permit, dated 02.21.2014), 89.0 (Rev. #3. dated 04.04.14), 59.1 (Bid Permit, dated 02.21.2014), 59.2 (Bid Permit, dated 02.21.2014), S9.3 (Rev. #3, dated 04.04.14; Bid Permit, dated 02.21.2014), 810.0 (Rev. #3, dated 04.04.14; Bid Permit, dated 02.21.2014), S10.I (Bid Pem» t, dated 02.21.2014), 510.2 (Rev. #3, dated 04.04.14; Bid Permit, dated 02.21.2014), 811.1 (Rev. #3, dated 04.04.14), 511.2 (Rev. #3, dated 04.04.14). Plumbing, Mechanical, and Electrical Drawings prepared by llerschman Architects, Inc., 25001 Emery Road, Suite 400, Cleveland, Ohio 44128; titled PARK VILLAGE BUILDINGS A. B, C; Sheets PL0 (Rev. 114, dated 06.11.2014; Rev. 43, dated 04.03.2014), N11.0 (Rev. #3, dated Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 43 of 73 PagelD 252 06.06.2014; Rev. #2, dated 04,11.2014; Rev. 41, dated 03,26.2014; Bid Permit, dated 02.21.2014), M2.0 (Rev. #2, dated 04.11.2014; Bid Permit, dated 02.21.2014), M3.0 (Rev. #2, dated 04.11.2014; Bid Permit, dated 02.21.2014), MP1.0 (Rev. #4, dated 06.11.2014; Rev. #3, dated 04.14.2014; Bid Permit, dated 02.21.2014), MP2.0 (Rev. #2, dated 04.11.2014; Bid Permit, dated 02.21.2014), EF1.0 (Rev. #3, dated 04.14.2014), EF1.1 (Rev. #3, dated 04.14.2014), E0.0 (Rev. 42, dated 04.11.2014; Rev. 41, dated 03.26.2014; Bid Permit, dated 02.21.2014), E0.1 (Bid Permit, dated 02.21.2014), E1.0 (Rev. #2, dated 04.11.2014; Rev. #1, dated 03.26.2014; Bid Permit, dated 02.21.2014), E2,0 (Rev. #2, dated 04.11.2014; Rev. #1, dated 03.26.2014; Bid Permit, dated 02.21.2014), E2.1 Bid Permit, dated 02.21.2014). BUILDINGS D. E. and E2: Architectural Drawings prepared by Fleischman Architects, Inc., 25001 Emery Road, Suite 400, Cleveland, Ohio 44128; titled PARK VILLAGE BUILDINGS D, E, E2, Sheets CS -0 (Rev. #5, dated 08.12.2014; Rev. #4, dated 07.25.2014), CS -1 (Rev. #5, dated 08.12.2014; Rev. 44, dated 07.25.2014; Rev. #3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Rev. #2 foundation, dated 04.04.14; Rev. #1, dated 03.24.2014; Bid Permit, dated 03.07.2014), SP -1 (Rev. 42, dated 04.04.2014; Bid Permit, dated 03.07.2014), A1.0 (Rev. 44, dated 07.25.2014; Rev. #2, dated 04.04.2014; Bid Permit, dated 03.07.2014), An (Rev. #3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Rev, 41, dated 03.24.2014; Bid Permit, dated 03.07.2014), A1.3 (Rev. #4, dated 07.25.2014; Rev. #3, dated 06.27.2014; Bid Pennit, dated 03.07.2014), A1.4 (Rev. #4, dated 07.25.2014; Bid Permit, dated 03.07.2014), A1.5 (Rev. #3, dated 06.27.2014; Bid Permit, dated 03.07.2014), A1.6 (Bid Permit, dated 03.07.2014), A1.7 (Rev. #3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Bid Permit, dated 03.07.2014), A1.8 (Rev. #3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Bid Permit, dated 03.07.2014), A1.9 (Rev. #3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Bid Permit, dated 03.07.2014), A2.0 (Rev. #4, dated 07.25.2014; Rev. 41, dated 03.24.2014; Bid Permit, dated 03.07.2014), A2.1 (Rev. 44, dated 07.25.2014; Rev, #3. dated 06.27.2014; Rev, #2, dated 04.04.2014; Rev. 41, dated 03.24.2014; Bid Permit, dated 03.07.2014), 42.2 (Rev. 43. dated 06.27.2014; Rev. #2, dated 04.04.2014; Rev. 41, dated 03.24.2014; Bid Permit, dated 03.07.2014), A2.3 (Rev. #4, dated 07.25.2014; Rev. 43, dated 06,27.2014; Rev. #2, dated 04.04.2014; Rev. 41, dated 03.24.2014; Bid Permit, dated 03.07.2014), A3.0 (Rev. #5, dated 08.12.2014; Rev. #4, dated 07.25.2014; Rev. #3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Rev. #1, dated 03.24.2014; Bid Permit, dated 03.07.2014), A3.1 (Rev. #5, dated 08.12.2014; Rev. #4, dated 07.25.2014; Rev. #3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Rev. 41, dated 03.24.2014; Bid Permit, dated 03.07.2014), A3.2 (Rev. #5, dated 08.12.2014; Rev. #4, dated 07.25.2014; Rev. #3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Rev. #1, dated 03.24.2014; Bid Permit, dated 03.07.2014), A3.3 (Rev. #5, dated 08.12.2014; Rev. #4, dated 07.25.2014; Rev. #3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Bid Permit, dated 03.07.2014), A3.4 (Rev. #3, dated 06,27.2014), A3.5 (Rev. #4, dated 07.25.2014; Rev. #3, dated 06.27.2014), A4.01 (Rev. 43, dated 06.27.2014; Rev. 42, dated 04.04.2014; Rev. #1, dated 03.24.2014; Bid Permit, dated 03.07.2014), A4.02 (Rev. #3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Rev. 41, dated Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 44 of 73 PagelD 253 03.24.2014; Bid Permit, dated 03.07.2014), A4.03 (Rev. #3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Rev. #1, dated 03.24.2014; Bid Permit, dated 03.07,2014), A4.04 (Rev. #3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Rev. #1, dated 03.24.2014; Bid Permit, dated 03.07.2014), A4.05 (Rev. #3, dated 06.27.2014; Rev. #2, dated 04,04.2014; Rev. #1, dated 03.24.2014; Bid Permit, dated 03.07.2014), A4.06 (Rev. #3, dated 06.27.2014; Rev. #2. dated 04.04.2014; Rev, #1, dated 03,24.2014; Bid Permit, dated 03.07.2014), A4.10 (Rev. #3, dated 06.27.2014; Rev. #2, dated 04.04,2014; Rev, #1, dated 03.24.2014; Bid Permit, dated 03.07.2014), A4.11 (Rev. #3, dated 06,27.2014; Rev. #2, dated 04.04.2014; Bid Permit, dated 03.07.2014), A4.12 (Rev. #3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Rev. #1, dated 03.24.2014; BW Permit, dated 03.07.2014). A4.13 (Rev. #5, dated 08.12.2014; Rev. #3, dated 06.27.2014; Rev. #2, dated 04,04.2014; Rev. #1, dated 03.24.2014; Bid Permit, dated 03.07.2014). A4.14 (Rev. #3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Bid Permit, dated 03.07.2014), A4.15 (Rev. #5, dated 08.12.2014; Rev.•#3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Rev. #1, dated 03.24.2014; Bid Permit, dated 03.07.2014), A4.16 (Rev. #3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Bid Permit, dated 03.07.2014), A4.17 (Rev. #3, dated 06.27,2014; Rev. #2, dated 04.04.2014; Bid Permit, dated 03.07.2014), A4.18 (Rev. #5, dated 08,12.2014; Rev. #3, dated 06.27.2014), A4.40 (Rev. #3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Bid Permit, dated 03.07.2014), A4.41 (Rev. #3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Bid Permit, dated 03.07.2014), A4.43 (Rev. #3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Bid Permit, dated 03.07.2014), A4.44 (Rev. #3, dated 06.27.2014; Rev. #2, dated 04,04.2014; Bid Permit, dated 03.07.2014), A4.45 (Rev. #3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Bid Permit, dated 03.07.2014), A5.0 (Rev. #3, dated 06.27.2014; Rev. #1, dated 03.24.2014; Bid Permit, dated 03.07.2014), A6,0 (Rev. #4, dated 07.25.2014; Rev, #3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Rev. #1, dated 03.242014; Bid Permit, dated 03.07.2014), A6.1 (Rev, #5, dated 08.12.2014; Rev. #4, dated 07.25.2014; Rev. #2, dated 04.04.2014; Rev. #1, dated 03.24.2014; Bid Permit, dated 03.07,2014), A6.2 (Rev. #6, dated 08.19.2014; Rev. #5, dated 08.12.2014; Rev. #4, dated 07.25.2014), A7.0 (Bid Permit, dated 03.07.2014), A7.1 (Bid Permit, dated 03.07.2014), A7.2 (Bid Permit, dated 03.07.2014), A7.3 (Bid Permit, dated 03.07.2014), A7.4 (Bid Permit, dated 03.07.2014). Structural Drawings, prepared by Thorson Baker and Associates, 3030 West Streetsboro Road, Richfield, Ohio 44286; titled PARK VILLAGE BUILDINGS D, E, E2; Sheets S1.0 (Rev. #1, dated 03.24.2014; Foundation Permit, dated 02.21.2014), S1.1 (Rev. #l, dated 03.24.2014; Bid Permit, dated 03.07.2014), S1.2 (Rev. #1, dated 03.24.2014; Foundation Permit, dated 02.21.2014), S2.0 (Rev. #2, dated 04.04.2014; Rev. #1, dated 03.24.2014; Foundation Permit, dated 02.21.2014), $2.1 (Rev. #1, dated 03.24,2014; Foundation Permit, dated 02.21.2014), S2.2 (Rev. #2, dated 04.04.2014; Rev. #1, dated 03.24.2014; Foundation Permit, dated 02.21.2014), S3.0 (Rev. #2. dated 04.04.2014; Rev. #1, dated 03.24.2014; Foundation Permit, dated 02.21.2014), S4.0 (Rev. #1, dated 03.24.2014; Foundation Permit, dated 02.21.2014), S4.1 (Rev. #2, dated 04.04.2014; Rev. #1, dated 03.24.2014; Foundation Permit, dated 02.212014), S4.2 (Rev. #2, dated 04.04.2014; Rev. #1, dated 03.24.2014; Foundation Permit, dated 02.21.2014), S4.3 (Rev. #2, dated 04.042014; Rev. #1, dated 03.24.2014; Foundation Permit, dated 02.21.2014), S5.0 (Rev. #3, dated 06.27.2014; Rev. #1, dated 03.24.2014; Bid Permit. dated 03.07.2014), S5.1 (Rev. #3, dated 06.27.2014; Rev. #2, dated 04.042014; Rev. #1, dated Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 45 of 73 PagelD 254 03.24.2014; Bid Permit, dated 03.07.2014), S5.2 (Rev. #3, dated 06.27.2014; Rev. #2, dated 04,042014; Rev. #1, dated 03.24.2014; Bid Permit, dated 03.07.2014), S6.0 (Rev, #1, dated 03.24.2014; Bid Permit, dated 03.07.2014), S7.0 (Rev. 142, dated 04.04.2014; Bid Permit, dated 03.07.2014), S7.1 (Rev. #2, dated 04.04.2014; Rev. #1, dated 03.24.2014; Bid Permit, dated 03.07.2014), 88.0 (Rev. #3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Rev. #1, dated 03,24.2014; Bid Permit, dated 03.07.2014), S8.1 (Rev. #3, dated 06,272014; Rev. #1, dated 03.24.2014; Bid Permit, dated 03.07.2014), S8.2 (Rev. #3, dated Q6,27.2014; Rev. #2, dated 04.04.2014; Rev. #1, dated 03.24.2014; Bid Permit, dated 03.07.2014), 89.0 (Rev. #3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Rev. #1, dated 03.24.2014; Bid Permit, dated 03.07.2014), S9.1 (Rev. #3, dated 06.27.2014; Rev. #1, dated 03.24.2014; Bid Permit, dated 03.07.2014), S9.2 (Rev. #3, dated 06.27.2014; Rev. #1, dated 03,24.2014; Bid Permit, dated 03.07.2014). 810.0 (Rev. #1, dated 03.24.2014; Bid Permit, dated 03.07.2014), 810.1 (Rev. #3. dated 06.27.2014; Rev. #1, dated 03.24,2014; Bid Permit, dated 03.072014), 511.0 (Rev. #2. dated 04.04.2014; Rev. #1, dated 03.24,2014; Bid Pennit, dated 03.07.2014), 811.1 (Rev. #2, dated 04.04.2014; Rev. #1, dated 03.24.2014; Bid Permit, dated 03,07.2014). S11.2 (Rev. #2, dated 04.04,2014; Rev. #1, dated 03.24.2014; Bid Permit, dated 03.07.2014), S11.3 Rev. #2, dated 04.04.2014; Rev. #1, dated 03.24.2014; Bid'Pennit, dated 03.07.2014), 512.0 (Bid Permit, dated 03.07.2014). Mechanical, Plumbing, and Electrical Drawings prepared by Herschman Architects, Inc., 25001 Emery Road, Suite 400, Cleveland, Ohio 44128; titled PARK VILLAGE BUILDINGS D, E, E2; Sheets M1.0 (Rev. #4, dated 07.25.2014; Rev. #2, dated 04.04.2104; Bid Permit, dated 03.07.2014), M2.0 (Bid Permit, dated 03.07.2014), MP1.0 (Bid Permit, dated 03.07.2014), MP2.0 (Bid Permit, dated 03,07.2014), EF1.0 (Rev, #2, dated 04.04.2104), EF1.1 (Rev. #2, dated 04.04.2104), E0.0 (Rev. #5, dated 08.12.2014; Rev. #4, dated 07.25.2014; Rev. #2. dated 04.04.2014; Bid Permit, dated 03.07.2014), E1.0 (Rev. #5, dated 08.12.2014; Rev. #3, dated 06.27.2014; Rev. #2, dated 04.04.2014; Rev. #1, dated 03.24.2014; Bid Permit, dated 03.07.2014), E1.1 (Rev. #5, dated 08,12.2014; Rev. #4, dated 07.25.2014; Rev. #3, dated 06.27.2014; Rev. #2, dated 04,04.2014; Bid Permit, dated 03.07.2014). GEOTECHNICAL REPORTS: Reed Engineering Group, 2424 Stutz Drive, Suite 400, Dallas, Texas 75235; Project No. 20862, dated April 5, 2016. Reed Engineering Group, 2424 Stutz Drive, Suite 400, Dallas, Texas 75235; Project No. 20862, dated February 12, 2016. Tolunay-Wong Engineers, Inc., 1918 University Drive, Suite 506, McKinney, Texas 75071; TWE Project No. 13.63.023/Final Report (Revision 1), dated February 7, 2014. Tolunay-Wong Engineers, Inc., 1971 University Business Drive, Suite 107, McKinney, Texas 75071; Project No. 11.63.016, dated January 3, 2012. Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 46 of 73 PagelD 255 CIVIL ENGINEERING DRAWINGS prepared by Cates -Clark & Associates, LLP, 14800 Quorum Drive, Suite 200, Dallas, Texas 75254; titled SITE & PUBLIC IMPROVEMENT PLANS FOR PARK VILLAGE; Sheets C1.1, dated 11.06.2014; 0.2, dated 11.06.2014; C2, dated 08.26.2014; C3, dated 12.03.2013; C4, dated 12.03.2013; C5, dated 09.04.2014; C5.1, dated 09.04.2014; C5.2, dated 09.04.2014; C5.3, dated 09,04.2014; C6, dated 11.15.2013; C7. dated 11.15.2013; C8, dated 03.05.2014; C8.1, dated 03.05.2014; C8.2, dated 05.29.2014; C9, dated 01.07.2014; C9.1, dated 05.29.2014; 00, dated 12.03.2013; C10.1, dated 12.18.2013; C11, dated 04.07.2014; C12, dated 12.27.2013; C12.1, dated 03.05.2014; C12.2, dated 05.20,2014; C13, dated 12.27.2013; C13.1, dated 12.18.2013; C13.2, dated 01.07.2014; C13.3, dated 01.07.2014; C13.4, dated 01.07.2014; C14, dated 12.03.2013; C14 -A, dated 12.05.2013; C15, dated 12.03.2013; C16, dated 12.03.2013; C17, dated 12.03.2013; 08, dated 12.03.2013; C19, dated 12.03.2013; C20, dated 12.03.2013; C21, dated 12.03.2013; C22, dated 12.03.2013; C23. dated 12.03.2013; C24, dated 12,03.2013; C25, dated 03.19.2014; C26, dated 03.19.2014; C27, dated 12.03.2013; C28, dated 03,19.2014; C29, dated 03.19.2014; C30, dated 12.03.2013; C31, dated 12.03.2013; C31.1, dated 12.03.2013; C31.2. dated 12.03.2013; C31.3, dated 12.03.2013; C31.4, dated 12.03.2013; C32, dated 08.29.2014; C33, dated 08.29.2014; C34, dated 08.29.2014; C35, dated 08.29.2014; C36, dated 01.27.2014; 07, dated 01.27.2014; C38, dated 08.29.2014; City Detail Sheets, dated November 2013, SD -1, SD -2, SD -3, SD -4, SD -5, SD -6, SD -7, SD -8, SD -9, 50-10; TxDOT Detail Sheets, CC -CG (FW), CDD -08 (FW), CSWD- 08 (FW), PED -12A (Sheets 1 to 4). LANDSCAPE ARCHITECT DRAWINGS prepared by Mesa Design Group, 1807 Ross Avenue, Suite 333, Dallas, Texas 75201; titled PARK VILLAGE, SOUTHLAKE, TEXAS; Sheets L0.01, L0.02, L0.03, L2.01, L2.02, L2.03, 12.04, L2.05, L2.06, L2.07, 13.01, L3.02, L3.03, L3.04, L3.05, 13.06, L4.111, L4.02, L4.03, L4.04, L4.05, L4.06, L4.07, L5.01, L5.02, L5.03, L5.04, L5.05, L5.06, L5.07, L5.08, L5.09, L5.10, L5.11, all dated 0522,2014. Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 47 of 73 PagelD 256 EXHIBIT 3 Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 48 of 73 PagelD 257 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION Excel Southlake I LP, Plaintiff, v. Woodmont Southlake, L.P., Herschman Architects, Inc., Cates -Clark & Associates, LLP and Tolunay-Wong Engineers, Inc., Defendants. § § § Civil Action No. 4:15-cv-00884-0 AFFIDAVIT OF KENNETH D. FRANCH, P.E. THE STATE OF TEXAS COUNTY OF COLLIN § § BEFORE ME, the undersigned authority, on this day personally appeared Kenneth D. Franck, who being by me duly sworn on oath deposed and said: 1. "My name is Kenneth D. Franch, AIA, S.E., P.E. I am over the age of twenty-one (21) years, 1 have never been convicted of a felony, and I am competent to make this affidavit. l have personal knowledge of the matters contained in this affidavit, and they are true and correct. 2. This affidavit is submitted pursuant to the requirements of' TEXAS CIVIL PRACTICE AND REMEDIES CODE § 150.002. with respect to the consulting services provided by Thorson Baker, Associates ("Thorson Baker"), sealed and signed by Gordon Russell Baker, Texas professional engineer license number 78830, to Herschman Architects, Inc. ("I Ierschman") in connection with the design and construction of the Southlake Park Village (the "Project"), an upscale shopping center owned by Excel Southlake 1 LP ("Excel") and located at 1065 East Southlake Boulevard, Southlake, Tarrant County, Texas (the "Center"). 3. 1 am a licensed professional engineer in the state of Texas. 1 am competent to testify on, and I am actively engaged in, the practice of engineering. A true and correct copy of my resume is attached hereto as Exhibit A, and is incorporated herein by reference for all purposes. 4. Based on my research, training, experience in the industry, and review of the documents identified in the attached Exhibit B (the "Project Documents"), Herschman is engaged in, and was retained on the Project to, among other things, prepare "Construction Documents" consisting of all drawings and specifications setting forth in detail the requirements for the construction of the Project. AFFIDAVIT OF KENNETH D. FRANCH, P.E. Page - 1 - 16147549 2 Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 49 of 73 PagelD 258 5. The structural and foundation drawings for the buildings at the Center (which comprise part of the Construction Documents) were issued by Thorson Baker, Associates ("Thorson Baker"). 6. As shown in my resume, Exhibit A, 1 am licensed to practice engineering, and have, for the past 40 years, been actively engaged in providing structural engineering services for clients similar in nature and geographic location to the Project. 7. Based on my education and professional experience, 1 am knowledgeable in the same area of practice as Thorson Baker. I have personal knowledge of the acceptable standards for the practice of engineering in the state of Texas and the greater Southlake area. which was the task to be performed by Thorson Baker on the Project. 8. I have reviewed the documents identified in the attached Exhibit B relating to the Project and Thorson Baker's services in this matter and I have investigated the Center on September 29, 2015, October 19, 2015, October 21, 2015, October 23, 2015, October 30, 2015, November 4, 2015, November 5, 2015, March 8, 2016. 9. Based on my education, experience, and a review of the Project Documents, it is my professional opinion that Thorson Baker, through its acts, errors or omissions failed to provide an acceptable foundation design for the buildings at the Center in accordance with the acceptable standards for the practice of engineering in the state of Texas and the greater Southlake area. 10. Thorson Baker failed to provide an acceptable foundation design for the buildings at the Center: a. Naturally occurring variations in soil moisture content and soil volume are typically anticipated by the design professionals under the standards of care and skill of a reasonably prudent professional engineer. Such naturally occurring variations in soil moisture content and soil volume are taken into account when designing structures situated on sites with expansive soils under these standards of care and skill. This is typically accomplished by designing superstructure elements which allow for differential movement of the foundation, and a foundation with sufficient strength and stiffness to perform properly when subjected to differential soil movement. b, Thorson Baker instead failed to design a foundation with sufficient strength and stiffness to perfonn properly and not deflect/distort excessively when subjected to differential soil movement. This resulted because Thorson Baker's design for the buildings at the Center is based on the use of shallow conventional spread footings, which fail to provide sufficient strength and stiffness to resist the estimated shrink/swell potential expected for the expansive soils common in north Texas and that are specifically present in the Southlake area. Shallow foundations bearing on expansive soils freely raise or lower depending on the pre - construction conditions, prescribed construction conditioning, if any, and post -construction addition or reduction of soil moisture caused by climatic and subsurface conditions. The moisture variations can cause differential movement of the foundations. Based on the reported plasticity indices ("PI") of 11 to 48 in the soils tested by the geotechnical engineer for the AFFIDAVIT OF KENNETH D. FRANCH, P.E. Page - 2 - 36147549 2 Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 50 of 73 PagelD 259 Project, Tolunay-Wong Engineers, Inc. ("TWE"), and the information provided in Table 5-1, both included in TWE's revised final report dated February 7, 2014 (the "TWE Report"), Thorson Baker should have recognized, but failed to recognize. that an appropriate foundation design for the buildings should accommodate differential soil movement due to post -construction moisture fluctuations for the reported Pf of the existing soil. c. It is my opinion that the design of the buildings' foundations were not in conformance with industry standards and conventional design of structures situated on sites with expansive clays in Texas or in Southlake, Texas. Structural design deficiencies have resulted in foundations that exhibit inadequate performance to prevent a level of deflection/distortion which will cause damage to building finishes and negatively impact the buildings. These design deficiencies, outlined above, have exacerbated differential movement of the foundations of Buildings A, 13, C, D, E and E2 of the Center. d. Ignorance of the well-known reputation of highly expansive soils in the Southlake and North Texas areas, as well as the information contained in the 12/10/2013 TWE Report, the standards of care and skill of a reasonably prudent professional engineer would require the structural engineer to expect, at a minimum, medium to high shrink/swell potential in the soils present at the Center. c. As a result of its ignorance of the area .soil conditions, Thorson Baker proposed improper subgrade preparation standards for soils below the slabs at the buildings. The success of slab -on -grade construction, as provided in the Thorson Baker design, relies in Targe part on proper preparation of the subgrade soils to limit differential foundation movement. The subgrade preparation technique specified by Thorson Baker is located within the structural construction documents on Sheet S1.0 for Building A, 13, and C, and Sheet SIA for Buildings D, E, and E2. under "Building Pad Preparation". 11. As a result of the actions, errors, or omissions of Thorson Baker described herein, Thorson Baker failed to design the foundations and slabs of the buildings in the Center in accordance with the standard of care and skill of the reasonably prudent professional engineer practicing in the Southlake, Texas area. 12. Based on Thorson Baker's failure to provide acceptable Construction Documents (including plans and specifications) for the construction of the Project, it is my opinion that the buildings of the Center have been constructed with significant design defects. It is also my opinion that such defects have caused damage and distress to Buildings A, 13, C, D, E and E2, and the finishes within the buildings. 13. These acts, errors, and/or omissions show that Thorson Baker failed to meet the applicable work product standards of design professionals. 14. My investigation is ongoing, and further examination of the Project may lead to the discovery of additional negligent acts, errors, and/or omissions in the work performed by Thorson Baker. As a result, I reserve the right to supplement and/or expand my opinions and conclusions with respect to the performance of Thorson Baker." AFFIDAVIT OF KENNETH D. FRANCH, P.E. Page - 3 - 3fi 147549 2 1 Case 4:15-cv-00884-0 Document 22 Filed 05/02/16 Page 51 of 73 PagelD 260 arse Kenneth D. 'ranch rI Sal BSCRIBED AND SWORN TO before me by the said , on this the day of April 2016, to certify which witness my hand and seal of office. ci. . My Commission Expires: etkigaacti 306 ILI 1OTA UBLIC IN AND FOR 'HE STATE OF TEXAS 1 JENNIFER StURDEVANT NotaryPublic, State of Texas My Commission Expires October 24, 2016 AFFIDAVIT OF KENNETH D. FRANCH, P.E. Page - 4 - 36147549.2