When Brookfield school Supt. Toby Gibson relayed the terms to a proposed settlement in the lawsuit filed against two entities involved in the construction of the school, board member Derek Mihalcin wasn’t sure it was a good deal.
But, after hearing Gibson’s explanation of what could happen if the district had rejected the settlement, Mihalcin agreed that approving the settlement probably was for the best, he said.
“I was pleased there was anything there,” said board President Ronda Bonekovic.
The board approved the settlement March 15. The Ohio Facilities Construction Commission, the school’s partner in building the school, approved the settlement April 20.
Under terms of the settlement, Timmerman Geotechnical Group will pay $550,000, and Balog Steins Hendricks and Manchester Architects will pay $900,000.
The money will be split with 64 percent going to OFCC – $924,800 – and 34 percent – $530,200 – going to the district. That percentage breakdown corresponds to the money paid when the school was built.
The board and OFCC sued Timmerman and Balog alleging they did not properly address shale found at the building site in designing the building, or in 2013, when an attempted fix failed.
Shale under the building has expanded, causing the hallway floor in the middle school to rise and walls to crack, the district and OFCC said.
Timmerman and Balog have denied the allegations and do not admit liability under the settlement.
Considering that the current remediation project ongoing at the middle school is expected to cost about $2.3 million, $1.455 million didn’t seem like enough, Mihalcin said. But, then, Gibson explained that there were no guarantees if the district had pushed to go to trial.
“If it doesn’t go through, then, we go to trial, which means an extension on this thing that’s been happening for years,” Mihalcin said. “It’s a gamble. You go to trial, you run the risk of losing.”
Gibson said the district had “exhausted some of our statute of limitations as far as contractual issues,” a potential liability at trial.
Even if the trial ended in the district’s favor, it might not have meant that the district would get all it wanted.
“But, now, you’ve eaten two, three years of attorney fees,” Mihalcin said. “It’s one of those things, you win, you still lose.”
A victory also likely would have meant that the defendants would have appealed, he said, and the case would carry on “just that much longer.”
“Going to appeal, even if we did win, we could still be looking at hundreds and hundreds of thousands of dollars in legal fees,” said district Treasurer Jordan Weber.
“This is pretty good, pretty good deal,” Gibson said of the settlement.
The settlement amount is “about what we’ve spent so far, not including legal fees,” Weber said, noting that the district has to front all funds and is then reimbursed for 64 percent by OFCC.
The district and OFCC both had money left over from the construction of the school, and that is being used for the remediation. If all goes well, the school district will not have to pay any general fund money for the project, Weber said.
Legal fees are another matter. The district has paid about $400,000 in legal fees to Brickler and Eckler from 2019 through Jan. 31, Weber said. That money comes from the school’s general fund.
OFCC was represented by the Ohio Office of Attorney General.
The settlement also means that, if the school experiences similar problems to what has been going on at the middle school elsewhere in the building, it could not go after Balog or Timmerman.
“We would cut ties with everybody,” Gibson said. “They’ve settled, and we move on.”
Gibson said he was betting that “if something was gonna heave because of the shale, same problem that the middle school has, it probably would have” happened by now.
Board member Jerry Necastro said the district should consider asking voters to approve a permanent improvement levy, and setting aside money for building maintenance.
Gibson said he and Weber have talked about a PI levy.
“We still think that the building is new, but we’ve been in it for 12 years,” Gibson said. “It’s a little bit older than 12 years.”
Weber said OFCC has estimated that a roof replacement alone would cost $2-$3 million.
The board last asked for a PI levy in 2019, when the 1.9-mill proposal was turned down by a tally of 673 against and 378 for.
The remediation project currently is focusing on the bathroom, Gibson said.
“Things, knock on wood, are going as hoped, as planned,” he said.
Middle school students will stop attending classes in person on May 18, and study remotely for the last two weeks of the year. Construction in the hallway and classrooms is supposed to start May 22. To give construction workers maximum time to get the job done, school will not start next year until Sept. 5, which is about two weeks later than it started this year.