County sues firm over construction defects at Ed Smith Stadium

Complaint seeks damages on counts of breach of contact, breach of implied warranty and negligence

Ed Smith Stadium is the Baltimore Orioles’ Spring Training home in Sarasota. File photo

Sarasota County has filed a complaint against a Rhode Island corporation, claiming defects in the firm’s renovations of Ed Smith Stadium for the Baltimore Orioles’ use during Spring Training and failure of the firm to correct the problems.

The suit was filed in the 12th Judicial Circuit Court in Sarasota on Nov. 30; the summons was served on Gilbane Building Co., dba Mills Gilbane, at its Plantation, Fla., office, on Dec. 16, court records show.

“When Mills Gilbane undertook the construction and renovation of Ed Smith Stadium it had a duty to use reasonable skill and care … including the proper selection and supervision of its sub-contractors and selection of installation of materials,” the complaint says.

Fans dine at shaded picnic tables at Ed Smith Stadium during spring training. File photo

Soon after the project reached the point of substantial completion — in late February 2011 — “problems arose with the flooring in the Stadium concourse areas,” an Oct. 18 memo from County Attorney Stephen DeMarsh to the County Commission explains. “Also, in early 2015 … cracks were discovered in the restroom buildings in [a] concession area and concrete cracking and settlement issues were discovered in the picnic area of left field,” the memo adds. Subsequent efforts by the firm to repair the damage proved inadequate, the complaint contends. The problems “remain unresolved,” it says.

The total guaranteed maximum price for the stadium renovations was $16,610,341, according to a document filed as an exhibit with the lawsuit.

During the commission’s regular meeting on Oct. 25, DeMarsh won the board’s approval to proceed with the litigation. “An attempt to mediate this before the filing of a lawsuit was unsuccessful,” he reported.

The mediation took place on Sept. 23, according to the Oct. 18 memo.

Then-Commissioner Carolyn Mason made the motion that gave DeMarsh the go-ahead for the lawsuit. Commissioner Charles Hines seconded the motion, which passed unanimously and without board member comment.

One page of an exhibit with the complaint references a number areas for renovations and upgrades to Ed Smith Stadium under the contract Mills Gilbane assumed from W.G. Mills. Image courtesy Sarasota County

In the Oct. 18 memo, DeMarsh explained that on June 28, 2009, the county and the Orioles executed a Memorandum of Understanding calling for the stadium project. Then, on Sept. 28, 2009, the memo continues, the county entered into a contract with Hoyt Architects of Sarasota to design the project. Almost exactly eight months later — on May 20, 2010 — the county entered into a contract with W.G. Mills Inc. of Sarasota for that firm to handle construction management services for the stadium work. On July 26, 2011, Gilbane Building Co. “assumed the W.G. Mills, Inc. contract,” the memo says. Then-County Commission Chair Nora Patterson signed the agreement that day, according to an exhibit filed with the complaint.

The county seeks damages “in excess of $15,000 [plus] pre-judgment interest, attorney’s fees and costs,” the complaint says, for each of three counts: breach of contact, breach of implied warranty and negligence.

Wes Cotter, director of communications for Gilbane in Rhode Island, told The Sarasota News Leader on Dec. 20 that the firm would decline comment at this point.

Gilbane Building Co. is based in Rhode Island. Image from the firm’s homepage

A copy of a March 15 letter from Carolyn Eastwood, the county’s transportation manager, to Timothy D. Hensey, a vice president of Gilbane Building Co. working in the firm’s Sarasota office, mentions the “cracks in the walls and floor slab of the restroom, settlement of the stair wells into the picnic area [and] settlement in the sidewalk/ramp slabs which creates trip hazards.” The letter adds, “During our previous discussion it was indicated that you did not believe this was a construction related issue.”

The case has been assigned to Judge Brian A. Iten.

Assistant County Attorney Milan Brkich is working with DeMarsh on the case, the court records show.

Details of the complaint

In response to the documented structural defects, the complaint says, in February 2013, Mills Gilbane representatives told county staff they would install a methyl methacrylate floor covering throughout the concourse areas and give the county a two-year warranty for the work, the complaint says; the county agreed to that. A resulting agreement documenting the plans incorporated warranties from the subcontractor Mills Gilbane hired to install the floor covering and the manufacturer of the covering, “both of which were assumed by Mills Gilbane under the contract,” the complaint adds. However, in the summer of 2013, the floor covering “started to show signs of bubbling and cracking, revealing a latent defect in material and/or workmanship,” the complaint continues.

In January 2014, the flooring was replaced in the problem areas under warranty by Mills Gilbane, the complaint adds. However, that spring, the complaint continues, “the bubbling and cracks to the flooring reappeared and were more extensive and included areas that had previously been repaired.”

County Attorney Stephen DeMarsh. File photo

In January 2015, the complaint says, the county sent Mills Gilbane “a Warranty Notice Letter to address the problems with the flooring.” To accommodate the Orioles’ Spring Training season that year, temporary repairs were made, the complaint adds, but the problems persisted.

In early 2015 — at the same time the concrete floor and wall cracks were found in the restroom/pavilion areas in the left field picnic section of the stadium — the complaint says, “[C]racking and sediment problems [were discovered] with the concrete stairways and sidewalks in the same area …”

The complaint also notes that on Jan. 13, 2010, the county hired Ardaman and Associates of Sarasota, a geotechnical firm, to study and report on the subsurface soil on the stadium grounds. The resulting document cited “evidence of buried trash, remnants of [the] former landfill at the site.”