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8/15/2019 5:10 PM
SHELLY D. MASTERS
Velva L. Price
COKINOS DIRECT 512-615-1139
EMAIL:
District Clerk
smasters@cokinoslaw.com
Travis County
D-1-GN-16-006178
Irene Silva
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August 15, 2019
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Via E-filing and Email (andrew.williams2@traviscountytx.gov)
To the Honorable Karin Crump
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Drew Williams
Staff Attorney for the Honorable Karin Crump
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250th District Court
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1000 Guadalupe St., 4th Floor
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Austin, Texas 78701
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Re: Cause No. D-1-GN-16-006178; John R. Keller Masonry, Inc. v. Weis Builders, Inc.
and Federal Insurance Company; et al. In the 250th District Court of Travis County,
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Texas
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Mr. Williams:
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Pursuant to Weis Builders, Inc.’s motion for leave to supplement the summary judgment
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record orally made and granted during yesterday’s hearing on 2013 Travis Oak Creek, LLC’s
Motions for Traditional and No-Evidence Summary Judgment, attached to this letter as Exhibit A
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is the Amended Affidavit of Mike Biskupski wherein his testimony has been amended to withdraw
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the mistaken representation that Pay Application 23 was unpaid and wherein, pursuant to Judge
Crump’s request, an Appendix item (no. 12) has been added to reflect the entire schedule of
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payments made to Weis Builders, Inc.
Thank you for your consideration of these matters.
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Sincerely,
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COKINOS | YOUNG
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/s/ Shelly D. Masters
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Shelly D. Masters
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Enclosure
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Counsel of Record
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COKINOS I YOUNG 1210 Nueces Street, Austin, TX 78701 cokinoslaw.com
HOUSTON • SAN ANTONIO • AUSTIN • DALLAS/FT. WORTH
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APPENDIX 1
From: Paul Coplen
Sent: Monday, January 9, 2017 12:47 PM
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To: Mark Rogers; 'Joe Tracy'; Travis Lucy
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Cc: Mike Biskupski; Derek Armstrong
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Subject: RE: OCV - TDHCA Review
Attachments: OCV 145840- Owner Pay Application #26.pdf
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All,
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Please see attached final invoice for Oak Creek Village.
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Thank you
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Paul Coplen
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Project Manager
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Weis Builders, Inc.
520 E. Corporate Drive, #500 Lewisville, Texas 75057
DIRECT 469.444.6124 | TEL 469.464.3333 | CELL 612.418.5757 | FAX 469.464.3315
Stay Connected!
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Facebook | LinkedIn | News | Twitter
Building Relationships Since 1939
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From: Paul Coplen
Sent: Thursday, December 22, 2016 2:18 PM
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To: 'Mark Rogers' ; 'Joe Tracy' ; Travis Lucy
Cc: Mike Biskupski ; Derek Armstrong
Subject: FW: OCV ‐ TDHCA Review
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Resending the below and attached as the first email file was to large. I will be sending the letter issued to K. Chaiken in 3
separate emails. If that does not work I will send in a dropbox.
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Thank you
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Paul Coplen
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Project Manager
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Weis Builders, Inc.
520 E. Corporate Drive, #500 Lewisville, Texas 75057
DIRECT 469.444.6124 | TEL 469.464.3333 | CELL 612.418.5757 | FAX 469.464.3315
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Stay Connected!
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Facebook | LinkedIn | News | Twitter
Building Relationships Since 1939
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From: Paul Coplen
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Sent: Thursday, December 22, 2016 1:54 PM
To: Travis Lucy ; 'Mark Rogers' ; 'Joe Tracy'
Cc: Mike Biskupski ; Derek Armstrong
Subject: RE: OCV ‐ TDHCA Review
1
We are in receipt of your most recent request for Weis to do additional warranty work. This request is problematic for
Weis for a number of reasons.
1. Weis has submitted pay applications #24 and #25 which have not been paid.
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2. We have not received a response from you or your counsel from our August 19th, 2016 letter. Without recapping
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the full letter we made it clear that the failure to make payments has put you in breach of contract. Weis is not
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obligated to perform any further work until this dispute is resolved.
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3. Attached Owner Change Orders #16 and #17 will need to be signed.
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4. Weis Builders is and has been willing to complete the final sealant punch list items. However, we have been
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instructed by ownership or the designated representative to not mobilize and complete any work related to the
stucco system.
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5. Upon payment of application #24 and #25 for $3,043,659.48 Weis Builders will re‐mobilize to the project and
complete warranty items. Based on the recap in the attached you would still have $241,646.46 withheld on
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Weis.
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We are prepared to discuss any of the above items, for clarification, as we are eager to close out this project.
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Thank you tri
Paul Coplen
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Project Manager
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Weis Builders, Inc.
520 E. Corporate Drive, #500 Lewisville, Texas 75057
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DIRECT 469.444.6124 | TEL 469.464.3333 | CELL 612.418.5757 | FAX 469.464.3315
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Stay Connected!
Facebook | LinkedIn | News | Twitter
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Building Relationships Since 1939
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From: Travis Lucy [mailto:travis@bcarc.com]
Sent: Wednesday, December 21, 2016 3:46 PM
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To: Paul Coplen
Cc: Karl Meeks ; Mark Rogers
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Subject: OCV ‐ TDHCA Review
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Hi Paul -
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Here is the TDHCA inspection report we discussed last week, including our comments on required
corrective measures and photographic documentation. Please read through it and give me and Mark
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a call when you're ready to schedule this work.
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Note that Eureka wishes to upload our documentation of these corrections no later than January
31st.
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Fortunately there's not a lot of work required on Weis's end - overall it's a good report.
Thank you,
Travis Lucy AIA
2
Bercy Chen Studio LP
1111 East 11th St. Ste. 200
Austin Texas, USA 78702
1-512-481-0092 (O) x03
1-512-658-6486 (M)
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www.bcarc.com
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APPENDIX 2
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APPENDIX 3
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CHAIKEN 580
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TENNYSON
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PKWY., SUITE 440
CH A KEN
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I PLANO, TEXAS 75024
P 214-265-0250
A TTORNEYS r 214-265-1537
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WWW.CHAIKENLAW.COM
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THIS IS A SETTLEMENT COMMUNICATION COVERED
BY RULE 408, TEXAS RULES OF EVIDENCE
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July 28, 2016
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Karl Meeks Via Email: karlmeeksoweisbuilders.com and
Weis Builders, Inc. Certgied Mail
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1660 S. Stemmons Freeway, Suite 475
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Dallas, Texas 75067
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Re: Oak Creek Village Apartments (the "Project"); AIA Standard Form of
Agreement between 2013 Travis Oak Creek, L.P. ("Owner") and Weis
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Builders, Inc. ("Contractor") dated May 21, 2014 (the "Contract") and
General Conditions of the Contract for Construction ("General Conditions")
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Mr. Meeks:
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Dear
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We represent 2013 Travis Oak Creek, L.P. ("Owner"). We write on its behalf in
response to your recent payment applications (nos. 23 and 24) in connection with the Project.
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Capitalized letter defined forth Contract.
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terms inthis have the same meaning as or set in the
As you know, Section 4.2 of the Contract required Contractor to Substantially Complete
IA of Project within within 490 calendar after
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Phase the 344 calendar days, and Phase IB days
the June 14, 2014 commencement date. As you know, Sections 4.4 of the Contract and 8.2.1 of
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the General Conditions both have a time-is-of-the-essence requirement. Contractor failed to
achieve Substantial Completion of Phases IA and IB on a timely basis, and it is our
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understanding that there is an open and unsolved dispute regarding what the Substantial
Completion dates are and further, regarding the implication and consequences of the delays in
achieving Substantial Completion. Notably, the architect of record has never issued
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a
Substantial Completion certificate,having rejected Contractor's contention that the Substantial
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Completion dates were, respectively, August 14, 2015 (for Phase IA) and November 25, 2015
(for Phase IB). The contractual requirement of obtaining a Certificate of Substantial Completion
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remains unsatisfied.
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Your attention isdirected to paragraph 4.4 of the Contract, which prescribes a schedule of
Liquidated Damages that are due and owing by Contractor to Owner in connection with the
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untimely Substantial Completion of Phases IA and IB. Phase IA was due to be Substantially
Complete by May 14, 2015. Itwas not Substantially Complete until, atthe earliest, August 14,
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2015. Owner was willing, atContractor's request, to consider Phase IA Substantially Complete
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EXHIBIT
2013 TOC LP016617
Karl Meeks y
Weis Builders,Inc.
Page 2
July28,20 16
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as of August 14, 2015, in reliance upon Contractor's representation that Substantial Completion
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of Phase 1B would be complete by no later than November 17, 2015, and provided that
Contractor reached Substantial Completion of Phase IB by no later than November 17, 2015
(which beyond Contract date of October 2015). Phase IB not
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was a date the due 7, was
Substantially Complete, by any definition, on November 17, 2015 and was not Substantially
Complete until, at the earliest, February 28, 2016. Accordingly, Owner is owed the following
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Liquidated Damages pursuant to Section 4.4 of the Contract:
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Phase IA: 1. $50,000.00 (first five days of delay (May 14-20, 2015));
2. $30,000.00 ($1000.00 per day for next 30 days-May 21-June 21);
and,
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3. $212,000.00 ($4,000.00 per day from June 21"'to August 14 ).
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Sub-Total: $292,000.00
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Phase IB: 1. $50,000.00 (first five days of delay (November 17-23, 2015));
$30,000.00 ($1000.00 per
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2. day for the next 30 days); and,
3. $232,000.00 ($4,000.00 per day from December 23-February 28,
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2016).
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Sub-Total: $312,000.00
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TOTAL $604,000.00
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Owner hereby assesses $604,000.00 to Contractor as Liquidated Damages, according to Section
4.4 of the Contract, and exercises its right tooffset this amount against any sums due or claimed
due by Contractor under the Contract, pursuant to Section 8.2.4.1 of the General Conditions.
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Section 4.4 of the Contract not an exclusive remedies provision, and Owner has
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suffered actual direct damages due to Contractor's delays in achieving Substantial Completion.
More particularly, Owner suffered rental and utility expenses and loss of rental income during
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the delay period, totaling approximately $l,133,291.00--damages which Owner attributes to and
seeks to recover from Contract, via offset or the assertion of a claim.
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Additionally, and as Contractor is aware, throughout the Project stucco was defectively
requires Contractor
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applied, and now substantial remediation. We understand that denies this
outright and/or refuses to correct and cure these defects at all,or in a satisfactory manner, as a
warranty item or otherwise. At this time, Owner estimates a remediation cost of between $1
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million and $2 million to resolve this defective stucco work, depending upon the outcome of its
investigation.
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Contractor also has failed and isrefusing to complete a number of open punch listitems,
which has Owner to remediation cost. Contractor
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caused incur approximately $50,000.00 in And,
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2013 TOC LP0166l8
Karl Meeks
Weis Builders,Inc.
Page 3
July28,2016
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has been unable to remediate a water intrusion problem affecting the Project's garage, as a
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warranty items or otherwise, giving rise to an estimated cost of remediation of approximately
$500,000.00 given what iscurrently known about the problem.
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You are advised that Contractor's payment application no. 23 in the amount of
approximately $43,000.00 will be processed for payment without waiver by Owner of any rights,
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complaints or claims or defenses.
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You are advised that Contractor's payment application no. 24 will not be paid, for the
following reasons:
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1. Contractor has failed to submit a proper final accounting as required by the
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Contract;
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2. Contractor has failed to satisfy some or all of the material requirements of
Section 9.10.2 of the General Conditions;
3. The Contract does notpermit a partial final
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payment application; and,
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4. Owner is entitled to recover the Liquidated Damages and other damages
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described above from Contractor, and/or to offset the total sum of the same
remaining claimed Contractor, in the of
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against any sums due by way
retainage or otherwise, and the total amount of Owner's claims against
Contractor apparently claims
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Contractor exceeds the total amount that is due
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Preview
8/15/2019 5:10 PM SHELLY D. MASTERS Velva L. Price COKINOS DIRECT 512-615-1139 EMAIL: District Clerk smasters@cokinoslaw.com Travis County D-1-GN-16-006178 Irene Silva e August 15, 2019 ic Pr Via E-filing and Email (andrew.williams2@traviscountytx.gov) To the Honorable Karin Crump L. Drew Williams Staff Attorney for the Honorable Karin Crump a 250th District Court lv 1000 Guadalupe St., 4th Floor Ve Austin, Texas 78701 k Re: Cause No. D-1-GN-16-006178; John R. Keller Masonry, Inc. v. Weis Builders, Inc. and Federal Insurance Company; et al. In the 250th District Court of Travis County, er Texas Cl Mr. Williams: ct Pursuant to Weis Builders, Inc.’s motion for leave to supplement the summary judgment tri record orally made and granted during yesterday’s hearing on 2013 Travis Oak Creek, LLC’s Motions for Traditional and No-Evidence Summary Judgment, attached to this letter as Exhibit A is is the Amended Affidavit of Mike Biskupski wherein his testimony has been amended to withdraw D the mistaken representation that Pay Application 23 was unpaid and wherein, pursuant to Judge Crump’s request, an Appendix item (no. 12) has been added to reflect the entire schedule of . Co payments made to Weis Builders, Inc. Thank you for your consideration of these matters. is av Sincerely, Tr COKINOS | YOUNG y /s/ Shelly D. Masters op Shelly D. Masters l c ia SDM fic Enclosure of cc: Via Email Counsel of Record Un COKINOS I YOUNG 1210 Nueces Street, Austin, TX 78701 cokinoslaw.com HOUSTON • SAN ANTONIO • AUSTIN • DALLAS/FT. WORTH Un of fic ia l c op y Tr av is Co . D is tri ct Cl er k Ve lv EXHIBIT a A L. Pr ic e Un of fic ia l c op y Tr av is Co . D is tri ct Cl er k Ve lv a L. Pr ic e Un of fic ia l c op y Tr av is Co . D is tri ct Cl er k Ve lv a L. Pr ic e APPENDIX 1 From: Paul Coplen Sent: Monday, January 9, 2017 12:47 PM e To: Mark Rogers; 'Joe Tracy'; Travis Lucy ic Cc: Mike Biskupski; Derek Armstrong Pr Subject: RE: OCV - TDHCA Review Attachments: OCV 145840- Owner Pay Application #26.pdf L. a All, lv Please see attached final invoice for Oak Creek Village. Ve Thank you k Paul Coplen er Project Manager Cl Weis Builders, Inc. 520 E. Corporate Drive, #500 Lewisville, Texas 75057 DIRECT 469.444.6124 | TEL 469.464.3333 | CELL 612.418.5757 | FAX 469.464.3315 Stay Connected! ct tri Facebook | LinkedIn | News | Twitter Building Relationships Since 1939 D is From: Paul Coplen Sent: Thursday, December 22, 2016 2:18 PM . Co To: 'Mark Rogers' ; 'Joe Tracy' ; Travis Lucy Cc: Mike Biskupski ; Derek Armstrong Subject: FW: OCV ‐ TDHCA Review is av Resending the below and attached as the first email file was to large. I will be sending the letter issued to K. Chaiken in 3 separate emails. If that does not work I will send in a dropbox. Tr Thank you y Paul Coplen op Project Manager c Weis Builders, Inc. 520 E. Corporate Drive, #500 Lewisville, Texas 75057 DIRECT 469.444.6124 | TEL 469.464.3333 | CELL 612.418.5757 | FAX 469.464.3315 l ia Stay Connected! fic Facebook | LinkedIn | News | Twitter Building Relationships Since 1939 of From: Paul Coplen Un Sent: Thursday, December 22, 2016 1:54 PM To: Travis Lucy ; 'Mark Rogers' ; 'Joe Tracy' Cc: Mike Biskupski ; Derek Armstrong Subject: RE: OCV ‐ TDHCA Review 1 We are in receipt of your most recent request for Weis to do additional warranty work. This request is problematic for Weis for a number of reasons. 1. Weis has submitted pay applications #24 and #25 which have not been paid. e 2. We have not received a response from you or your counsel from our August 19th, 2016 letter. Without recapping ic the full letter we made it clear that the failure to make payments has put you in breach of contract. Weis is not Pr obligated to perform any further work until this dispute is resolved. L. 3. Attached Owner Change Orders #16 and #17 will need to be signed. a 4. Weis Builders is and has been willing to complete the final sealant punch list items. However, we have been lv instructed by ownership or the designated representative to not mobilize and complete any work related to the stucco system. Ve 5. Upon payment of application #24 and #25 for $3,043,659.48 Weis Builders will re‐mobilize to the project and complete warranty items. Based on the recap in the attached you would still have $241,646.46 withheld on k Weis. er Cl We are prepared to discuss any of the above items, for clarification, as we are eager to close out this project. ct Thank you tri Paul Coplen is Project Manager D Weis Builders, Inc. 520 E. Corporate Drive, #500 Lewisville, Texas 75057 . DIRECT 469.444.6124 | TEL 469.464.3333 | CELL 612.418.5757 | FAX 469.464.3315 Co Stay Connected! Facebook | LinkedIn | News | Twitter is Building Relationships Since 1939 av From: Travis Lucy [mailto:travis@bcarc.com] Sent: Wednesday, December 21, 2016 3:46 PM Tr To: Paul Coplen Cc: Karl Meeks ; Mark Rogers y Subject: OCV ‐ TDHCA Review op Hi Paul - c Here is the TDHCA inspection report we discussed last week, including our comments on required corrective measures and photographic documentation. Please read through it and give me and Mark l ia a call when you're ready to schedule this work. fic Note that Eureka wishes to upload our documentation of these corrections no later than January 31st. of Un Fortunately there's not a lot of work required on Weis's end - overall it's a good report. Thank you, Travis Lucy AIA 2 Bercy Chen Studio LP 1111 East 11th St. Ste. 200 Austin Texas, USA 78702 1-512-481-0092 (O) x03 1-512-658-6486 (M) e www.bcarc.com ic Pr L. a lv Ve k er Cl ct tri D is . Co is av Tr y op c l ia fic of Un 3 APPENDIX 2 c e P ri L . v a l Ve r k l e t C r i c s t D i o . C i s a v Tr p y c o a l c i f fi n o U Un of fic ia l c op y Tr av is Co . D is tri ct Cl er k Ve lv a L. Pr ic e Un of fic ia l c op y Tr av is Co . D is tri ct Cl er k Ve lv a L. Pr ic e APPENDIX 3 YN CHAIKEN 580 °"EG TENNYSON CHA PKWY., SUITE 440 CH A KEN 1 I PLANO, TEXAS 75024 P 214-265-0250 A TTORNEYS r 214-265-1537 e WWW.CHAIKENLAW.COM ic Pr THIS IS A SETTLEMENT COMMUNICATION COVERED BY RULE 408, TEXAS RULES OF EVIDENCE L. July 28, 2016 a lv Ve Karl Meeks Via Email: karlmeeksoweisbuilders.com and Weis Builders, Inc. Certgied Mail k 1660 S. Stemmons Freeway, Suite 475 er Dallas, Texas 75067 Cl Re: Oak Creek Village Apartments (the "Project"); AIA Standard Form of Agreement between 2013 Travis Oak Creek, L.P. ("Owner") and Weis ct Builders, Inc. ("Contractor") dated May 21, 2014 (the "Contract") and General Conditions of the Contract for Construction ("General Conditions") tri Mr. Meeks: is Dear D We represent 2013 Travis Oak Creek, L.P. ("Owner"). We write on its behalf in response to your recent payment applications (nos. 23 and 24) in connection with the Project. . Capitalized letter defined forth Contract. Co terms inthis have the same meaning as or set in the As you know, Section 4.2 of the Contract required Contractor to Substantially Complete IA of Project within within 490 calendar after is Phase the 344 calendar days, and Phase IB days the June 14, 2014 commencement date. As you know, Sections 4.4 of the Contract and 8.2.1 of av the General Conditions both have a time-is-of-the-essence requirement. Contractor failed to achieve Substantial Completion of Phases IA and IB on a timely basis, and it is our Tr understanding that there is an open and unsolved dispute regarding what the Substantial Completion dates are and further, regarding the implication and consequences of the delays in achieving Substantial Completion. Notably, the architect of record has never issued y a Substantial Completion certificate,having rejected Contractor's contention that the Substantial op Completion dates were, respectively, August 14, 2015 (for Phase IA) and November 25, 2015 (for Phase IB). The contractual requirement of obtaining a Certificate of Substantial Completion c remains unsatisfied. l ia Your attention isdirected to paragraph 4.4 of the Contract, which prescribes a schedule of Liquidated Damages that are due and owing by Contractor to Owner in connection with the fic untimely Substantial Completion of Phases IA and IB. Phase IA was due to be Substantially Complete by May 14, 2015. Itwas not Substantially Complete until, atthe earliest, August 14, of 2015. Owner was willing, atContractor's request, to consider Phase IA Substantially Complete Un EXHIBIT 2013 TOC LP016617 Karl Meeks y Weis Builders,Inc. Page 2 July28,20 16 e ic as of August 14, 2015, in reliance upon Contractor's representation that Substantial Completion Pr of Phase 1B would be complete by no later than November 17, 2015, and provided that Contractor reached Substantial Completion of Phase IB by no later than November 17, 2015 (which beyond Contract date of October 2015). Phase IB not L. was a date the due 7, was Substantially Complete, by any definition, on November 17, 2015 and was not Substantially Complete until, at the earliest, February 28, 2016. Accordingly, Owner is owed the following a Liquidated Damages pursuant to Section 4.4 of the Contract: lv Ve Phase IA: 1. $50,000.00 (first five days of delay (May 14-20, 2015)); 2. $30,000.00 ($1000.00 per day for next 30 days-May 21-June 21); and, k 3. $212,000.00 ($4,000.00 per day from June 21"'to August 14 ). er Sub-Total: $292,000.00 Cl Phase IB: 1. $50,000.00 (first five days of delay (November 17-23, 2015)); $30,000.00 ($1000.00 per ct 2. day for the next 30 days); and, 3. $232,000.00 ($4,000.00 per day from December 23-February 28, tri 2016). is Sub-Total: $312,000.00 D TOTAL $604,000.00 . Co Owner hereby assesses $604,000.00 to Contractor as Liquidated Damages, according to Section 4.4 of the Contract, and exercises its right tooffset this amount against any sums due or claimed due by Contractor under the Contract, pursuant to Section 8.2.4.1 of the General Conditions. is Section 4.4 of the Contract not an exclusive remedies provision, and Owner has av is suffered actual direct damages due to Contractor's delays in achieving Substantial Completion. More particularly, Owner suffered rental and utility expenses and loss of rental income during Tr the delay period, totaling approximately $l,133,291.00--damages which Owner attributes to and seeks to recover from Contract, via offset or the assertion of a claim. py Additionally, and as Contractor is aware, throughout the Project stucco was defectively requires Contractor co applied, and now substantial remediation. We understand that denies this outright and/or refuses to correct and cure these defects at all,or in a satisfactory manner, as a warranty item or otherwise. At this time, Owner estimates a remediation cost of between $1 al million and $2 million to resolve this defective stucco work, depending upon the outcome of its investigation. i fic Contractor also has failed and isrefusing to complete a number of open punch listitems, which has Owner to remediation cost. Contractor of caused incur approximately $50,000.00 in And, Un 2013 TOC LP0166l8 Karl Meeks Weis Builders,Inc. Page 3 July28,2016 e ic has been unable to remediate a water intrusion problem affecting the Project's garage, as a Pr warranty items or otherwise, giving rise to an estimated cost of remediation of approximately $500,000.00 given what iscurrently known about the problem. L. You are advised that Contractor's payment application no. 23 in the amount of approximately $43,000.00 will be processed for payment without waiver by Owner of any rights, a complaints or claims or defenses. lv Ve You are advised that Contractor's payment application no. 24 will not be paid, for the following reasons: k 1. Contractor has failed to submit a proper final accounting as required by the er Contract; Cl 2. Contractor has failed to satisfy some or all of the material requirements of Section 9.10.2 of the General Conditions; 3. The Contract does notpermit a partial final ct payment application; and, tri 4. Owner is entitled to recover the Liquidated Damages and other damages is described above from Contractor, and/or to offset the total sum of the same remaining claimed Contractor, in the of D against any sums due by way retainage or otherwise, and the total amount of Owner's claims against Contractor apparently claims . Contractor exceeds the total amount that is due Co