Thursday, July 15, 2021

Judge's Preliminary Ruling in Sarasota County Defective Flooring Fiasco Lawsuit at Ed Smith Stadium Leans Towards Defendant Gilbane

INFORMATION IN THIS ARTICLE FROM PUBLIC RECORDS & NEWS ARTICLES ABOUT ED SMITH STADIUM SRQ.

UPDATE Thursday July 15th, 2021: Judge's Preliminary Ruling in Sarasota County Defective Flooring Fiasco Lawsuit at Ed Smith Stadium Leans Towards Defendant Gilbane. Case Number: 2016 CA 006035 NC Original File Date 11/30/2016, Judge Walker states on Thurs 7/15/2021, "This is an important case and I understand that, but sometimes a ruling by a Judge is binary, there is no middle ground. I want you to know Mr. (Bora) Kayan for Sarasota County Plaintiff, while I have stated clearly that I am bending toward ruling towards the Defendants (Gilbane) in this case that's not a reflection of your legal work." Judge Walker continues by saying, " This is the longest non-jury trial I have ever encountered, I have found that some of the evidence put forth by the Defendant (Gilbane) to be compelling and therefore ultimately would carry their position".

Apparently the end result of the 'cause and effect' of the so called defective MMA resin flooring on the 1st floor and 2nd floor open air concourses at Ed Smith stadium is water intrusion under the resin flooring from the Florida humidity and heavy rain from tropical type storms and "frequent power" washing of the resin flooring on the 1st floor and 2nd floor concourses at Ed Smith stadium (power washing even at the seams). The Judge is favoring that there is no actual defect in the BASF resin flooring or it's installation by Advance Flooring in 2013 and that Sarasota County was responsible for any proper upkeep, cleaning and repairs of the flooring at Ed Smith stadium, case appears to be heading towards closure. 

Sarasota County, at their own expense, had replaced all the 'so called defective' resin flooring at Ed Smith stadium in December 2017 at a cost of $1.1 Million dollars, money came from the Sarasota County Tourist Development Council (TDC). Why did Sarasota County spend $1.1 Million dollars (no bid - single source contract) to replace all the resin flooring at Ed Smith stadium in DECEMBER 2017 when they had an active lawsuit in place on the builder Gilbane since OCTOBER 2016 who eventually in DECEMBER 2020 offered a settlement of $513,000 which Sarasota County refused, WTH? Makes no financial sense, were baseball fans tripping and falling all over the stadium, WHAT'S THE RUSH TO REPLACE? Maybe the County needs to hire somebody who can add and subtract and make better financial decisions, like a CPA

HERALD TRIB WRITES: Sarasota County Rejects $513,000 Gilbane December 2020 Settlement Offer in Defective Flooring Lawsuit After Paying $1.1 Million to Replace Defective Flooring in December 2017. Sarasota County tax paying residents and all Sarasota County voters have a right to know why the County refused a $513,000 settlement offer in the Ed Smith stadium lawsuit and decided to let it ride, and roll the dice and now apparently ending up with nothing? They would just love a guy like Sarasota Deputy County Attorney Bora Kayan in Los Vegas who let's $513,000 ride on the pass line going for double or nothing and then rolls snake eyes (if you wager the pass line and roll snake eyes, two, you then lose your bet, if you roll a 7 or a 11 you double your bet). 

The bosses at the Bellagio Casino in Los Vegas would send a plane and comp a room for such a "high roller" as Mr Kayan. Sarasota Deputy County Attorney Bora Kayan was leading the charge to recoup monies lost from the flooring fiasco lawsuit at Ed Smith Stadium. It doesn't take a CPA to figure out that Sarasota County should have taken the $513,000 settlement offer from Gilbane in December 2020 instead of rolling the dice and "Let It Ride", Mr Kayan! Sarasota County could now be liable for all of Gilbane's legal expenses and attorney fees, which after 4 years and 9 months would be substantial! This is a colossal blunder by the Sarasota County Commissioners and the County Attorney's Office who advise them, shoulda, coulda, woulda took the $513,000 Mr Kayan!

Deputy County Attorney Bora Kayan and County Commissioners "decision" to reject the $513,000 offer from Gilbane in the Ed Smith 'Flooring Fiasco' lawsuit was very, very foolish. Sarasota County is now very possibly liable for Gilbane the builder's Legal and Attorney fees! Generally, the state of Florida follows the “American rule,” meaning that each party in a civil lawsuit is responsible for his or her own attorney fees regardless of the outcome of the case. There is an important, albeit limited, exception to this general rule, however. Under Florida Statutes § 768.79 and Florida Rules of Civil Procedure 1.442, there is a possibility of shifting a portion of a winning party’s attorney fees and costs to the losing party in some cases. To fall under Rule 1.442, sometimes called the “Florida Settlement Rule,” several requirements must be met. A party seeking to enforce the rule must try his or her case in front of a jury or Judge and receive a verdict in his or her favor. The successful litigant must have, at least 45 days prior to trial, tendered a detailed, written proposed settlement offer to the party against whom the verdict was rendered, Gilbane offered $513,000 in December 2020. Finally, there must have been at least a 25% difference between the settlement offer and the jury’s verdict or Judge's verdict which Sarasota County, due to Attorney Bora Kayan's efforts, appears to be on track to recover $0. Sarasota County Florida records show Deputy County Attorney Bora S. Kayan held multiple jobs from 2017 to 2019. One of the most recent records in 2019 lists a job of Deputy County Attorney for Bora S. Kayan and a pay of $142,000. This is 182.0 percent higher than the average pay for co-workers and 130.4 percent higher than the national average for government employees, gee, how about that. Do you think Mr Kayan would bet his yearly salary on a roll of the dice? As of 2020 top dog Sarasota County Attorney Rick Elbrecht will receive a salary of $236,584 a year, he is Mr Kayan's boss. When it comes to local elected representatives who craft policy and make WISE decisions, Sarasota County Commissioners earn $91,821 yearly most have income from other business ventures or are attorneys. 

COURT RULING , attorney Bora Sabih Kayan for Sarasota County vs Gilbane. Apparently Judge Stephen Walker is set to FINALLY rule on the ongoing lawsuit filed by Sarasota County on Gilbane the builder who did the renovations at the Baltimore Orioles Ed Smith stadium in Sarasota Fl. Sarasota County is claiming 'construction defects' most specifically cracked concrete in the 1st and 2nd floor concourse walkways and the subsequent resin flooring (as chosen by the Baltimore Orioles) that was installed during a change order in 2013 to cover the cracked concrete, the resin flooring also proved to be "defective", so claimed Bora Kayan for Sarasota County. This resin flooring installed in 2013 at Ed Smith Stadium is the same resin flooring the Baltimore Orioles have at their home ballpark Camden Yards. The Baltimore Orioles pushed hard for Sarasota County to use the resin flooring at Ed Smith stadium and even paid $383,840 of the $513,787 change order in 2013 that saw the resin flooring installed to cover all the ugly cracks in the concrete floors of the 1st and 2nd floor concourses at Ed Smith stadium. Defective Flooring Debacle at Ed Smith Stadium is Black Eye for Sarasota County Commission, Over $1 Mill Lost From Sarasota County TDC.

Is the Baltimore Orioles renovated Ed Smith Stadium in Sarasota sinking into the land fill and wetlands that it was built on? Most likely the cracked concrete floors (and columns) on the 1st and 2nd floor concourses at Ed Smith Stadium that are the focus of a major lawsuit were caused by the building sinking into the old city dump that it was built on? The Orioles, under the direction of ballpark whiz Janet Marie Smith, partnered with the city of Sarasota on a renovation that turned a limited ballpark on a small footprint – literally built on the city dump, no less – into one of the nicer (larger) facilities in the Grapefruit League, but problems ensued over the years as the ED SMITH STADIUM facility shifted, settled and sunk into the junk.

HOW STUPID....DON'T BUILD A HEAVY, SPRAWLING, 2 STORY CONCRETE BASEBALL STADIUM OVER THE CITY DUMP: It is difficult enough to put up a large heavy building in Florida without having to deal with cracked concrete floors from time to time as the substrate in Florida is just sand and the bedrock underlying most of the state is either limestone or dolostone, which is naturally soluble and is easily dissolved by rainwater and groundwater. But TO build a large two story baseball stadium over the city dump filled with old rusting cars and refrigerators sinking into the ground and you are going to have a hell of a time with cracked concrete floors, walls, etc, etc, how stupid.

The smelly Sarasota city dump was located on the north side from 17th street to 12th street where trash was burned in the open air. The City of Sarasota and Sarasota County entered into several inter-local agreements in 2009 and 2010 when the $30 million spring training complex was approved. The parties outlined the transfer of Ed Smith Stadium to the county under a number of conditions and included an agreement that $1 million the county owed the city would be placed in an environmental reserve account to be used to clean up the remains of an old landfill (SARASOTA CITY DUMP) that sits under the stadium. 

The money, according to the agreement, is to be used to pump out contaminated water approximately 27-feet below the Ed Smith stadium that sits on top of the old Sarasota City Dump. When you become head grounds keeper for a world-class baseball field, you don’t expect it to be built on top of a landfill. But, for Dan Thomas’ Ed Smith Stadium, training facility for the Baltimore Orioles in Sarasota, Florida, that’s exactly what happened. Dan Thomas, the Baltimore Orioles’ head groundskeeper of Florida operations, has been taking care of the Ed Smith Stadium field — and the Orioles’ other 13 spring fields, some of which are behind Ed Smith, some of which are at Twin Lakes Park for almost 12 years. 

But beneath the 2.5 acres of manicured 54 Bermuda grass lies an old, old landfill, the Sarasota City Dump. “We don’t have the best growing conditions,” admits Dan. “It’s been a difficult time to get the grass growing consistently. And, when we do renovations, it’s not unusual to find trash and maybe even a tire or two.” "A lot of the irrigation work has some interesting objects around it. We have had irrigation lines running through a car, underground. When we have had irrigation line breaks and we dig the holes to repair them, we’ve pulled out full-size car tires, women’s purses, etc. It’s interesting what we find in the ground here, said Dan Thomas.”

Defective Flooring Debacle at Ed Smith Stadium is Black Eye for Sarasota County Commission, Over $1 Mill Lost From TDC. HERALD TRIB WRITES: Sarasota County Rejects $513,000 Gilbane December 2020 Offer in Defective Flooring Lawsuit After Paying $1.1 Million to Replace Defective Flooring in December 2017. “We don’t want you to think that we’re not seeking to get [the money] back, $1,079,243.00 ” Commissioner Charles Hines told Council members. BACK STORY ON LAWSUIT: On Jan 8, 2013 Sarasota County issued a change order to add MMA resin flooring to cover cracked concrete floors on 1st and 2nd floor concourses at Ed Smith Stadium, the total cost was $513,787. Baltimore Orioles agreed to pay the majority of the change order for new resin flooring at $383,840, Sarasota County to pay $54,148, and Gilbane to pay $78,798. It appears that Sarasota County wants the $513,000.00 settlement offer from Gilbane for the defective concrete and flooring PLUS the $1,079,243.00 that Sarasota county paid on their own dime to replace all the defective resin flooring at Ed Smith Stadium, for a total of $1,592,243.00. It doesn't take a CPA to figure out that this extra money spent on the defective flooring by Sarasota County will be hard fought to recoup, good luck.

It appears that Sarasota County is looking to recoup at least $513,000 for the so-called construction defects from Gilbane at Ed Smith stadium and also $1,079,243 the amount Sarasota County paid in December 2017 to replace all the defective MMA flooring at the direction of County commissioner Charles Hines to PremUS of Orlando. Apparently Sarasota County did not want to subject the Spring 2018 baseball fans at the Baltimore Orioles Ed Smith stadium to any trip hazards caused by the defective resin flooring, so they spent $1.1 Million Dollars in December 2017 to replace it all, regardless of the ongoing Lawsuit, what the hell? Sarasota County Deputy County Attorney Bora Kayan is leading the charge to recoup monies lost from the flooring fiasco at the Baltimore Orioles Ed Smith stadium.

Defective and Dangerous Flooring: The MMA resin flooring installed in 2013 at Ed Smith stadium proved "defective" and cracked, delaminated and separated all over Ed Smith stadium shortly after installation, especially on the 2nd floor concourse as per records from the County lawsuit. Sarasota County officials were well aware of the extremely hazardous trip conditions for the baseball fans with the defective flooring at Ed Smith Stadium for at least 3 years but did little other than occasionally make temporary patch repairs with PremUS of Orlando who was paid $48,000 for all the repairs. Sarasota County filed a lawsuit on Gilbane the builder in Nov 2016 due to the defective MMA flooring. Original File Date 11/30/2016.

Gilbane offered a settlement of $513,000 in December 2020 but Sarasota County rejected the offer as they are out of pocket $1,079,243 the amount they paid in December 2017 to replace the defective MMA flooring at the direction of County commissioner Charles Hines. Gilbane's settlement offer in December 2020 of $513,000 in regards to the defective MMA flooring at Ed Smith Stadium appears to be very fair based on what was paid for the installation of the original MMA resin coating in 2013, which was a total amount of $513,787. 

So where and why and at whose direction did Sarasota County commissioner Charles Hines pay almost double, $1,079,243, to have new resin flooring installed in December 2017 to replace the 39,800 square feet of defective MMA flooring at Ed Smith stadium. Why was this amount $1,079,243 (double original cost) paid to PremUS in Orlando with a NO BID, single source contract out of Tourist Development Council (TDC) money when the original winning bid in 2013 by Advance Flooring was $513,787, what the hell? Charles D. Hines was elected to the Sarasota County Commission in 2012 and in 2016. He also served as its chair in 2014 and was the 2019 chair, he left at end of 2020, Hines was also the Chairman of the Sarasota Tourist Development Council (TDC) until the end of 2020. The Sarasota Tourist Development Council (TDC) recommends tourism policy to the County Commission and oversees the use of tourist development tax revenues, pursuant to Florida law. SARASOTA COUNTY STADIUM BOONDOGGLE: The County's decision to use TDC funds to replace the defective flooring at Ed Smith Stadium while a Civil Lawsuit with the the Builder rages on in County Court over the same issue is a misappropriation of public money, $1.1 Million Dollars of TDC money. See Sarasota TDC website and Board Members info CLICK HERE.

Sarasota County appears to have violated State Law in "giving" PremUS of Orlando a $1.1 Million Dollar NO BID project at Ed Smith Stadium in fall of 2017 to replace defective MMA resin flooring. The 2020 Florida Statutes; in Florida all state and local government public works construction projects (Ed Smith Stadium) must follow the public bidding and procurement laws, which seek to protect the public against the squandering of public funds and prevent abuses such as fraud, waste, and favoritism. Local governments are required to provide public notice and to competitively award public works construction contracts, unless an exception applies, such as where the estimated cost of the project will be less than $100,000 (Ed Smith Stadium flooring replacement $1.1 Million dollars). "It doesn't take a CPA to figure out that Sarasota County overpaid by hundreds of thousands of dollars to have the defective flooring at Ed Smith stadium replaced with $1.1 Million Dollars out of TDC.

In Jan 2013 Sarasota County put out for bid 39,800 square feet of BASF MMA resin flooring to be installed to cover cracks in concrete on 1st and 2nd floor concourses at Ed Smith Stadium, the Baltimore Orioles strongly urged the use of this specific BASF MMA resin flooring. In the Jan 2013 bid process for the MMA flooring at Ed Smith stadium "Advance systems flooring" won the bid with a price of $513,787, PremUS of Orlando came in second at $$610,000 and there was a long list of several other bidders who did not make the cut. The BASF MMA resin flooring was pushed for use by the Baltimore Orioles but eventually failed in the sub tropical climate of Sarasota Fl. During a period of a least 4 years, attempts were made by Sarasota County to have the flooring replaced and or at least repaired by Gilbane, Advance and BASF to no avail. It appears that in 2015 and 2016 Sarasota County started to use PremUS of Orlando to make spot repairs in the MMA resin flooring at Ed Smith stadium. When it got to the point of no return, no resolve, Sarasota County filed a lawsuit on the builder Gilbane in Nov 2016. Original File Date 11/30/2016.

In the ongoing Sarasota County lawsuit on builder Gilbane, photos were submitted on March 31, 2021 (taken on June 16, 2016) showing the deteriorating condition of the 39,800 square feet of MMA flooring on the 1st and 2nd floor concourse walkways at Ed Smith stadium, seams were split open with cracks and holes in the flooring appeared to be everywhere. For some reason Sarasota County decided in August of 2017 to replace all the defective flooring at Ed Smith Stadium at their own expense, $1,079,243, irregardless of the Gilbane lawsuit. Instead of using the long list of flooring contractor bidders from the 2013 flooring project, who had all the initial requirements, measurements, scope of the project, etc, and have them re-bid the project, never happened! Sarasota County gave PremUS of Orlando the $1.1 Million Dollar project, no questions asked and without a competitive bid, this violates State law. The County used the excuse that the flooring was so bad, especially on the 2nd floor concourse, that they had to have the flooring replaced ASAP without using the bidding process to remove tripping points at seams separated in the MMA resin flooring and make the flooring (Stadium) safe for the March 2018 spring training baseball fans (why all of a sudden then?). In the end result the County appears to have paid $1,079,243, or double, for a job that should have cost then about $513,000 plus cost to rip up old flooring. The County appears to have kept hidden the numbers of the 2013 winning bid of $513,000 for the original MMA resin flooring application, until recently.  

"The county’s Procurement Department had approved the “single-source request” NO BID CONTRACT on August 10th, 2017 for PremUS of Orlando a memo showed. The form explaining that process said, “With a deadline for completing a major portion of the work before Spring Training in March 2018, there is not time to allow multiple vendors to provide test patches and prove their products, systems and methods are successful." Delaying the installation to after Spring Training 2018 would require the additional cost of temporary and unsightly repairs to make the surfaces that are failing safe,” said Charles Hines. The money for the work was to come out of a TDC fund set aside for capital projects and events, the memo noted."

PALM BEACH POST WRITES Jan 1/12/2021 – Sarasota County has rejected a $513,000 settlement proposal from the company that renovated Ed Smith Stadium. The county filed the lawsuit in Nov 2016 against Gilbane Building Co. because of alleged cracks and defects in the concrete concourse at the Baltimore Orioles’ spring training home in Sarasota. The case is expected to go to trial in April or May. The county sued Gilbane after officials say work that began in 2012 to renovate the stadium led to repeated problems with cracks in the 1st and 2nd floor concourses and the 39,800 square feet of MMA flooring resin that was later installed to fix the original issues proved defective. Gilbane had initially denied those claims. The company’s counsel served the county with the $513,000 settlement proposal in December 2020. The $32 million stadium renovation project began in 2010, almost a year after the county and Orioles struck a deal to upgrade Ed Smith to keep the team in town. In the spring of 2012, however, cracks were discovered in the concrete throughout the concourse area, according to the lawsuit. A year later in 2013, Gilbane had the low bidder on the change order Advance Flooring install 39,800 square feet of BASF methyl methacrylate adhesive (MMA) flooring resin across the entire 1sr floor and 2nd floor concourse per the change order on the stadium work. This MMA flooring cracked and split at the seams apparently due to excess power washing. Problems continued with the flooring until Sarasota county hired flooring contractor, PremUS Orlando, to install new resin flooring in December 2017 and early January 2018 under a NO BID single source contract. This appears to have addressed the problem, the county said.

County Commissioner Charles Hines said in December 2017, "no problem we will get the $1.1 Million back from Gilbane" in conjunction with the Nov 2016 lawsuit to replace the defective flooring, no problem. Now Gilbane comes forward with a $513,000 settlement offer in December 2020 that does not come close to cover all the suppoded "defects" in the original lawsuit and doesn't touch any of the $1.1 Million Sarasota County paid for the new resin flooring, talk about throwing good County money after bad. See below statements made by officials with Sarasota County as to why they spent $1,079,243 to replace all the MMA resin flooring in Ed Smith Stadium in December 2017. Sarasota County has an active lawsuit filed against Gilbane Building contractors filed in November 2016 to replace same flooring. During a November review of 2017 fiscal year expenditures out of county Tourist Development Council Tax (TDC) revenue, a member of the county’s Tourist Development Council noted one line item, which said, “Stadium Repair & Improvement, $1.1 Million.” “Is that something new? Did this come up before?” Mayor Terry Gans of Longboat Key asked. Hines told the council members. Delaying the installation to after Spring Training March 2018 would require the additional cost of temporary and unsightly repairs to make the surfaces that are failing safe for the baseball fans, removing trip hazards. Charles Hines was elected to the Sarasota County Commission in 2012, and won his next term in 2016 without political opposition, as of Jan 2021 he is no longer on the Sarasota County commission. Hines had helped lead and set policy for Sarasota County, which has approximately 2,300 employees, a budget of over "One Billion Dollars $$$$$", and a population of more than 417,000 residents. The Sarasota County lawsuit against the builder Gilbane is headed up by Asst County Attorney Bora Sabih Kayan who joined the Sarasota County Attorney’s office in May of 2017 just before the deal was struck to replace all the MMA resin flooring at Ed Smith Stadium for $1.1 Million dollars.

Lawsuit Case # 2016CA006035NC
SARASOTA COUNTY vs GILBANE BUILDING CO
File Date 11/30/2016    OPEN
For Plaintiff Sarasota County
Bora S. Kayan Assistant County Attorney Sarasota Fl.

SARASOTA's POT OF GOLD AT ED SMITH STADIUM: An independent analysis commissioned by Sarasota County government released the week of 2/23/2019 concluded that the Orioles generate approximately $97 million in annual economic impact back to taxpayers and residents. Sarasota County (and Baltimore Orioles) paid an estimated $31 million to renovate Ed Smith Stadium, which reopened for the Orioles spring training in 2011. Apparently all the MMA resin flooring at Ed Smith Stadium Sarasota Fl was unsafe for fans during the Spring games of 2014, 2015, 2016 and 2017. After the March 2017 season, Baltimore and Sarasota County officials decided to spend more than $1 Million for a full-scale re-installation of the stadium’s MMA resin flooring. Since 2012 the facility had needed annual fixes to replace broken, split and bubbling portions of the MMA resin flooring on both of the concourses. 
 

MONEY, MONEY AND MORE MONEY.....The Baltimore Orioles closed out their spring training 2018 season in Sarasota in much the same way they’ve done it for the last 10 years: with more than 100,000 fans passing through the gates. In attracting 103,294 fans to Ed Smith Stadium, the Orioles sold out six of 15 games this spring in 2018, including 8,792 to see the New York Yankees on March 14, 2018. The team averaged 6,886 fans per home game, (generating over a $100 Million dollar economic impact for Sarasota County for the month of March 2018). It was the eighth time in nine years the American League-East team broke the 100,000 attendance mark. “Each spring we enjoy outstanding support from our fans, from those local to Sarasota to our many visitors from the Mid-Atlantic region,” said David Rovine, Vice President of Orioles-Sarasota. 

 

Bill Warner Private Investigator Sarasota 941-926-1926 - Cheaters and Child Custody Cases at http://www.wbipi.com/

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